T 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


A    TREATISE 


LAW    OF    EYI^EJif^E. 


SIMON  GREENLEAF,  LL.D., 

EMERITUS    PROFESSOR    OF    LAW    IX    HARVARD     UNIVERSITY. 


Qaorsum  enim  sacras  leges  inventae  et  sancitse  fucre,  nisi  ut  ex  ipsarura  justitia 
unicuique  jus  suum  tribuatur  ?  —  MusavKDUS  ex  Ulpl.\n. 


VOLUME    L 

TWELFTH  EDITION,   CAREFULLY  REVISED,   WITH   LARGE  ADDITIONS, 
BY 

ISAAC   F.  REDFIELD,  LL.D. 


BOSTON: 
LITTLE,    BROWN,    AND     COMPANY. 

MDCCCLXVI. 


Entered  according  to  Act  of  Congress,  in  the  year  1858, 

By  James  Greenleaf, 

in  the  Clerk's  Office  of  the  District  Court  of  the  District  of  Massachusetts. 

Entered  according  to  Act  of  Congress,  in  the  year  1863, 

By  James  Greenleaf, 

ill  the  Clerk's  Office  of  the  District  Court  of  the  District  of  Massachusetts. 

Entered  according  to  Act  of  Congress,  in  tlie  year  1866, 

By  Mrs.  James  Greenleaf, 

in  the  Clerk's  Office  of  the  District  Court  of  the  District  of  Massachusetts. 

T 


CAMBRIDGE: 
PRESS  OP  JOHN  WILSON  AND  SON 


TO   THE    IIONOKAnLK 

JOSEPH    SiOliV,    LIJ). 


ONE     OP     THE      JUSTICES     OF     TlIK     SUPREME     COfUT     OK     THE      CNITED     ATATM, 
,     AND      DANE     PROFESSOR     OP      LAW      IN      IIAKVARD      LMVKBAITY. 


Sir, 
In  dedicating  this  work  to  you,  I  pertbrni  an  office  both 
justly  due  to  yourself  and  dehghtfid  to  mc,  —  that  of 
addmg  the  evidence  of  a  private  and  confidential  witness  to 
the  abundant  public  testimonials  of  your  worth.  I'nr  more 
than  thirty  years  the  jurisprudence  of  our  comitry  has  been 
illustrated  by  your  professional  and  juricUcal  laboi-s ;  with 
what  success,  it  is  now  superfluous  to  speak.  Other  Jurists 
have  attained  distinction  in  separate  departments  of  the 
law ;  it  has  been  reserved  for  yoiu'self,  with  singular  feli- 
cit)',  to  cultivate  and  administer  them  all.  Looking  back 
to  the  unsettled  state  of  the  law  of  our  national  institutions, 
at  the  period  of  yoiu'  accession  to  the  bench  of  the  Supreme 
Court  of  the  United  States,  and  considering  the  unlimited 
variety  of  subjects  within  the  cognizance  of  the  Fedend 
tribunals,  I  do  but  express  the  consenting  opinions  of  your 

contemporaries,  in  congratulatuig  our  countn,-  tliat  jour  life 

(iii) 


72Q914 


IV  DEDICATION. 

and  vigor  have  been  spared  until  the  fabric  of  her  jurispru- 
dence has  been  advanced  to  its  present  state  of  lofty  emi- 
nence, attractive  beauty,  and  enduring  strength. 

But  many  will  regard  the  foundation  of  the  present  Law 
School  in  Harvard  University  as  the  crowning  benefit, 
which,  through  your  instrumentality,  has  been  conferred 
on  our  profession  and  country.  Of  the  multitude  of  young 
men,  who  will  have  di-unk  at  this  fountain  of  jurisprudence, 
many  will  administer  the  law,  in  every  poition  of  this  wide- 
spread Republic,  in  the  true  spkit  of  the  doctiines  here 
mculcated ;  and  succeedmg  throngs  of  mgenuous  youth  will, 
I  trust,  be  here  imbued  with  the  same  spirit,  as  long  as  our 
government  shall  remain  a  government  of  law.  Yoiu*  anx- 
iety to  perpetuate  the  benefits  of  this  Institution,  and  the 
variety,  extent,  and  untu'ing  constancy  of  youi*  labors  in 
this  cause,  as  well  as  the  cheerfid  patience  with  which  they 
have  been  borne,  are  peculiarly  known  to  myself;  while, 
at  the  same  time,  I  have  witnessed  and  been  instructed  by 
the  high  moral  character,  the  widely-expanded  views,  and  the 
learned  and  just  expositions  of  the  law,  which  have  alike 
distmguished  your  private  Lectures  and  your  pubhshed 
Commentaries.  With  unaffected  sincerity  I  may  be  per- 
mitted to  acknowledge,  that  while  my  path  has  been 
illumined  for  many  years  by  yoiu'  personal  friendship  and 
animating  example,  to  have  been  selected  as  your  associate 
in  the  arduous  and  responsible  labors  of  this  Institution, 
I  shall  e\CY  regard  as  the  peculiar  honor  and  happiness 
of  my  professional  life.  Beate  vixisse  videar,  quia  mm 
Scipio7ie  vixerim. 


DEDICATION.  T 

Long  may  you  contiiiuc  to  reap  the  ricli  rcwanl 
so  vast,  so  incessant,  and  of  such  surpassHnrj  vahi-  ,  m   un- 
heartfelt  gratitude  of  our  whole  country,  and  in  the  pros- 
perity of  her  institutions,  which  you  have  done  so  much  to 
establish  and  adorn. 

I  am,  with  the  highest  respect, 
Yoiu-  obhged  friend, 

SIMON   GREENLKAK. 

Cambridge,  Massachusetts, 
February  23,  1842. 


ADVERTISEMENT  TO  THE  FIRST   EDITIOX. 


The  profession  being  already  fumislied  with  tlic  excel- 
lent treatises  of  jNIi*.  Starkie  and  ^ii\  Phillips  on  Evidence, 
with  large  bodies  of  notes,  referrmg  to  American  decisions, 
perhaps,  some  apology  may  be  deemed  necessaiT  for  obtrud- 
ing pn  theu'  notice  another  work,  on  the  same  subject.  But 
the  want  of  a  proper  text-book,  for  the  use  of  the  students 
under  my  instruction,  lu-ged  me  to  prepare  something  to 
supply  this  deficiency  ;  and,  having  embarked  m  the  under- 
takuio-  I  was  natiu-ally  led  to  the  endeavor  to  reiuliT  the 
work  acceptable  to  the  profession,  as  well  as  usefid  to  the 
student.  I  would  not  herem  be  thought  to  disparage 
the  invaluable  works  just  mentioned ;  which,  for  tlieir 
accuracy  of  learning,  elegance,  and  sound  philosophy,  are 
so  highly  and  imiversally  esteemed  by  the  American  Bar. 
But  many  of  the  topics  they  contain  were  never  api)licable 
to  this  country;  some  others  are  now  obsolete;  and  the 
body  of  notes  has  become  so  large,  as  almost  to  overwhelm 
the  text,  thus  greatly  embarrassing  the  student,  increasinix 
the  labors  of  the  instructor,  and  rendering  it  indispensable 
that  the  work  should  be  rewritten,  with  exclusive  reference 
to  our  own  jiuisprudence.     1  have  endeavored  to  state  those 


viii  ADVERTISEMENT. 

doctrines  and  rules  of  the  Law  of  Evidence  which  are 
common  to  all  the  United  States ;  omitting  what  is  purely 
local  law,  and  citmg  only  such  cases  as  seemed  necessary 
to  illustrate  and  support  the  text.  Doubtless  a  happier 
selection  of  these  might  be  made,  and  the  work  might  have 
been  much  better  executed  by  another  hand ;  for  now  it  is 
fuiished,  I  find  it  but  an  approximation  towards  what  was 
originally  desired.  But  in  the  hope,  that  it  still  may  be 
found  not  useless,  as  the  germ  of  a  better  treatise,  it  is 
submitted  to  the  candor  of  a  liberal  profession. 


Cambridge,  Massachusetts, 
February  23,  1842. 


ADVERTISEMENT   TO   THE   TWi:[JTIl    KDlTloN. 


In  preparing  the  present  edition,  the  entire  vohinic  has 
been  carefully  revised,  and  the  decisions,  both  En«,'lisli  and 
American,  thoroughly  examined,  for  the  entire  period  since 
the  decease  of  the  author ;  and  such  additions  made,  botli 
in  the  text  and  notes,  as  seemed  requisite  to  brin^:^  tlie  book 
up  to  the  present  date,  as  nearly  m  the  form  in  uliicli  the 
author  kept  it  during  his  life  as  was  practicable.  Careful 
abstracts  of  every  section  have  been  prefixed  to  the  several 
chapters,  and  nearly  a  hundred  pages  of  new  matter  added 
in  all,  with  many  hundreds  of  new  cases.  The  new  matter, 
which  is  thus  indicated  [*],  has  all  been  carefully  i)repared 
by  my  own  hand ;  but,  m  the  multiplicity  of  other  laboi-s, 
I  have  been  obliged  to  trust  mainly  to  the  faithful  and  dis- 
crimhiating  investigations  of  my  excellent  friend  and  assist- 
ant, William  A.  Herrick,  Esq..  of  the  Boston  bar,  for  the 
collection  of  the  materials  wliich  I  have  used.  I  feel  great 
confidence  that  this  volume  will  be  found  so  far  reliable,  as 
to  the  present  state  of  the  law  upon  the  numerous  toi)ics 
discussed,  as  to  be  valuable  and  acceptable  to  tlie  pro- 
fession. 

1.  F.  IL 

Boston,  April  10,  18G6. 


NOTE. 


Some  of  the  citations  from  Starkie's  Reports,  in  the  earlier  part  of  this 
work,  are  made  from  the  Exeter  edition  of  1823,  and  the  residue  from  the 
London  edition  of  1817-20.  The  editions  of  the  principal  elementary 
writers  cited,  where  they  are  not  otherwise  •  expressed,  are  the  follow- 
ing:  — 

Alciati,  Opera  Omnia.     Basileae.     1582.     4  tom.  fol. 

Best  on  Presumptions.     Lond.     1844. 

Best  Principles  of  Evidence.     Lond.     1849. 

Canciani,  Leges  Barbarorum  Antiquoe.     Venetiis.     1781-1785.  5  vol.  fol. 

Carpzovii,  Practicos  Per.  Crim.     Francof.  ad  Mtenum.     1758.     3  vol.  fol. 

Corpus  Juris  Glossatum.     Lugduni.     1627.     6  tom.  fol. 

Danty,  Traite  de  la  Preuve.     Paris.     1097.     4to. 

Everhardi  Concilia.  Ant.     1643.     fol. 

Farinacii  Oijera.     Francof.  ad  Maenum.     1618-1686.     9  vol.  fol. 

Glassford  on  Evidence.     Edinb.     1820. 

Gresley  on  Evidence.     Philad.     1837. 

Joy  on  Confessions.     Dublin.     1842. 

Mascardus  de  Probationibus.     Francof.  ad  Mienum.     1684.     4  vol.  fol. 

Mathews  on  Presumptive  Evidence.     New  York.     1830. 

Menochius  de  Presumptionibus.     Geneva^.     1670.     2  tom.  fol. 

Mittermaier,  Traite  de  la  Preuve  en  Matiere  Criminelle.     Paris.     1848. 

Peake's  Evidence,  by  Norris.     Philad.     1824. 

Phillips  and  Amos  on  Evidence.     Lond.     1838.     8th  ed. 

Phillips  on  Evidence.     Lond.     1843.     8th  ed. 

Pothier  on  Obligations,  by  Evans.     Philad.     1826. 

Russell  on  Crimes.     3d  Amer.  ed. 

Starkie  on  Evidence.     6th  Amer.  ed.     2  vols. 

SteiJien  on  Pleading.     Philad.     1824. 

Strykiorum,  Opera.     Francof  ad  Magnum.     1743-1753.     15  vol.  fol. 

Tait  on  Evidence.     Edinb.     1834. 

Tidd's  Practice.     9th  Lond.  ed. 

Wigram  on  the  Interpretation  of  Wills.     3d  Lond.  ed.  1840. 

"Wills  on  Circumstantial  Evidence.     Lond,     1838. 

[xi] 


CONTENTS. 


PART    I. 

Of  the  Nature  and  PRiNCirLEs  of  Evidence. 

CHAPTER  I. 

Section 

Preliminary  Observations 1~^ 

CHAPTER  II. 

Of  Things  Judicially  taken  notice  of  without  Proof     ....  4-6 

CHAPTER  HI. 
Of  the  Grounds  of  Belief 7-13 

CHAPTER  IV. 
Of  Presumptive  Evidence 14-48 

PART    IT. 

Of  the  Rules  which  govern  the  Production  of  Testimony. 

CHAPTER  I. 

Of  the  Relevancy  of  Evidence •     •         ^^"^^ 

CHAPTER  II. 
Of  the  Substance  of  the  Issue ^*^~'^ 

VOL.  I.  b 


XIV  CONTENTS. 


CHAPTER  III. 

Section 

Of  the  Burden  of  Proof 74-81  c 


CHAPTER  IV. 
Of  tlie  Best  Evideuce 82-97 

CHAPTER  V. 
Of  Hears'ay 98-126 

CHAPTER  VI. 

Of  Matters  of  Public  and  General  Interest 127-140 

CHAPTER  VII. 

Of  Ancient  Possessions 141-146 

CHAPTER   VIII. 
Of  Declarations  against  Interest 147-155 

CHAPTER  IX. 
Of  Dying  Declarations 156-162 

CHAPTER   X. 

Of  the  Testimony  of  "Witnesses  subsequently  dead,  absent,  or 

disqualified 163-168 

CHAPTER   XI. 
Of  Admissions 169-212 

CHAPTER  XII. 
Of  Confessions 213-235 

CHAPTER  Xin. 

Of  Evidence  excluded  by  Public  Policy 236-254 


CONTENTS.  XV 


CHAPTER  XIV. 

Section 
Of  the  Number  of  Witnesses,  and  the  Nature  and  Quantity  of 

Proof  required  in  particular  cases 255-274 

CHAPTER   XV. 

Of  the  Admissibility  of  Parol  or  Verbal  Evidence,  to  aflPect  that 

which  is  Written 275-305 


PART    III. 

Of  the  Instruments  of  Evidence. 

CHAPTER  I. 

Of  Witnesses,  and  the  Means  of  jDrocuring  their  Attendance     .     306-325 

CHAPTER   II. 

Of  the  Competency  of  Witnesses 326-430 

CHAPTER  HI. 

Of  the"  Examination  of  Witnesses 431-469 

CHAPTER  IV. 
Of  Public  Documents 470-498 

CHAPTER  V. 
Of  Records  and  Judicial  Writings .     .     499-556 

CHAPTER  VI. 
Of  Private  Writings 557-583 


INDEX  TO    CASES  CITED. 


Abbey  v.  Lill  440 

Abbot  V.  Inhabitants  of  Hermon      197 

V.  Massie  291 

V.  Plumbe  569,  572 

Abbott  V.  Mitchell  385 

Abby  V.  Goodrich  428 

Abeel  v.  Eadcliff  268 

Abney  v.  Kingsland  51  a.  109 

Abrahams  v.  Bunn  414,  422 

Acero  et  al.  v.  Petroni  435 

Acker  v.  Ledyard  564 

Ackroyd  &  Warburton's  case  230 

Adanipthwaite  v.  Synge  509 

Adams  v.  Balch  538 

V.  Barnes  531,  536 

V.  Betz  502,  509 

V.  Broughton  533 

V,  Cuddy  .  397 

V.  Davidson  190 

V.  Davis  416 

V.  Field  576,  581 

V.  French  109 

V.  Frye          '  568 

V.  Gardiner  420 

V.  Kerr  572,  575 

V.  Llovd  451  a 

V.  McMillon  268,  269,  551 

V.  Pearson  534 

V.  Power  73 

V.  Sanders  212 

V.  Stanyan  145,  570 

V.  Worldley  275 

Addams  v.  Seitzlnger  122 

Addington  v.  Magan  66 

Addis  V.  Van  Buskirk  66 

Adler  v.  Friedman  303 

Aiialo  V.  Foiirdrinicr  356 

Agawam  Bank  v.  Sears  564 

Agnculturist  Co.  v.  Fitzgerald         568 

Aiken  v.  Kllburne  237 

Aitcheson  v.  Maddock  80 

Aitken,  ex  parte  238 

Alban  v.  Pritchett  185,  341 


Section 

Alcock  V.  Cooke  239 

V.  Whatmore  6 

Alden  v.  Dewey  352 

Alderson  v.  Clay  42,  97,  197,  198 

Aldrich  v.  Kinney  548 

Aldworth's  case  502 

Alexander  v.  Gibson  543 

V.  Harris  58 

V.  Moore  305 

Alivon  V.  Furnival  546 

Allan  V.  Comstock  292 

AUcott  V.  Strong  112,  177 

Allegheny  v.  Nelson  5,  20 

Allen  V.  Allen  301 

V.  Bennett  268 

V.  Butler 

V.  Denstone  113 

V.  Duncan  108 

V.  Furbish  281,  284 

V.  Harrison  239  a 

V.  Hawks  392,  420,  430 

V.  Kingsbury  293 

V.  McKeen  197 

V.  Say  ward  24 

V.  The  Portland  Stage  Co.      125 

V.  Watson  489 

Allington  v.  Bearcrofl  392 

AUmore  v.  Mills  505 

Alna  V.  Plnmnier  264 

Alner  v.  George  172,  173,  305 

Alston  V.  Taylor  120 

Alvord  V.  Baker  38 

Aniey  v.  Long  246,  309,  558 

Amherst  Bank  v.  Root  572 

Amick  V.  Oyler  535 

Amos  V.  Hughes  74 

Anderson  v.  Brock  333,  427 

V.  Caldwell  533 

V.  Hamilton  251 

V.  Long  54,  55 

V.  Parker  104 

V.  Robson  558 

V.  Root  563 

V.  Saunderson  185 

V.  Weston  121 


b* 


XVlll 


INDEX   TO   CASES   CITED. 


Andrews  v.  Andrews 
V.  Becker 


Section 

319 
173 
534 


V.  Brown 

V.  Oliio  &  Miss.  R.  R. 

Co.  239  a 

V.  Palmer  168 

V.  Solomon  239 

V.  Vandiizer  55 

Androscoggin  Bank  v.  Kimball       38  a 

Angus  i\  Smith  4G2 

Ankerstein  c.  Clarke  69 

Annandale  (Marchioness  of) 

V.  Harris  23 

Anneslcy  v.  D.  of  Anglesea       37,  244 
Anon.  V.  Moore  55 

Anscombe  v.  Shore  137,  405 

Anthony  v.  The  State  156 

Apollon  (The)  6 

Apothecaries  Co.  v.  Bentley  79 

Appleton  V.  Boyd  172,  330,  452 

V.  Ld.  Braybrook  514 


Arbouin  v.  Anderson 
Archer  v.  English 

V.  Walker 
Arding  v.  Flower 
Armory  v.  Delamirie 
Armstrong  v.  Hewitt 
Arutield.13.  Bates 
Arnold  v.  Arnold 

c.  Bp.  of  Bath  and  Wells 

V.  Cessna 

V.  Jones 

V.  Redfern 

V.  Rivoult 

V.  Tourtclot 
Arrison  v.  Harmstead 


Arundell  v.  Arundell 

V.  White 
Ashley  V.  Ashley 

V.  Wolcott 
Ashmore  v.  Hardy 
Ashton's  case 
Ashton  v.  Parker 
Ashworth  v.  Ivittridge 
Aslin  V.  Parkin 
Aston  V.  Perkes 
Astor  V.  Union  Ins.  Co. 
Atalanta  (The) 
Atchcson  V.  Everitt 
Athcrford  c.  Beard 
Atkins  V.  Hatton 

V.  Sanger 

V.  Tredgold 
Atkinson  v.  Cummins 
Atlantic  Ins.  Co.  v.  Conrad 

;Mut.  Ins.  Co.  V.  Fitz 
patrick 
Atto.-Gen.  v.  Boston 
V.  Bowman 


81  a 

205 

205 

316,  317 

34,  37 

485 

60 

369,  528,  531 

484 

281 

568 

546 

69 

498 

568 

554 

513 

86 

64 

97,  204 

451  a 

361 

497 

535 

81 

280 

31 

328,  371,  374 

475 

485 

174 

174,  176 

290 


Atto.-Gen.  v.  Briant 
V.  Bulpit 


332 

323 

293 

54,  55 


Section 
250 
432 
V.  Clapham  280 

V.  Davison  554 

V.  Drummond  295 

V.  Glasgow  College  295 
V.  Hitchcock  433,  449,  461 
V.  Jeffreys  60 

V.  Parnther  42,  81 

V.  Pearson  295 

V.  Proprietors  jMeet- 

ing-house,  &c.  46 

V.  Shore  295 

V.  Thcakstone         479,  492 

V.  Windsor  38 

Attwood  V.  Small  171 

V.  WeUon  369,  370,  450 

Aubert  v.  Walsh  38 

Audley's  (Ld.)  case  343 

Augusta  (Bank  of)  v.  Earle  5,  43 


V.  Windsor 
Austin  V.  Bostwick 

V.  Chambers 

V.  Rumsey 

«.  Sawyer 

V.  State 

V.  Thompson 

V.  Vesey 

V.  Willes_ 
Australasia  (Bank  of)  v.  Xias 
Avery  v.  Pixley 

V.  Stewart 
Aveson  v.  Kinnard    102 
Ayers  v.  Hewitt 


115,  116 
112 
171 
572 
271 
445 
563 
237 
384 
546 
273 
288 
156,  254,  337 
569 


B. 

Babb  V.  Clemson 
Backhouse  v.  Middleton 
Bacon  v.  Charlton 

V.  Chesney 

V.  Williams 
Badger  v.  Titcomb 
Bagley  v.  Mc?tlickle 
Bagot  V.  Williams 
Bailey  v.  Bailey 

V.  Hyde 

V.  Lmnpkin 

V.  Musgrave 

V.  Taylor 
Bailiffs  of  Tewksbury  v. 
BailHe  v.  Hole 

r.  Jackson 
Bain  v.  ]\Iason 
Bainbridge  v.  Wade 
Baird  v.  Cochran 

V.  Fortune 
Baker  v.  Arnold 


180,  568 
552 

102,  205 

187 

581 

532 

558 

532  . 

392 

bo 

386 

73 

564 

Bricknell  58 

392,  430 
485 
493 
289 
452' 
287 
245 


INDEX  TO    CASES   CITED. 


Baker  v.  Blunt 
V.  Dening 
V.  Dewey 
V.  Haines 
V.  ISIilburn 
V.  Rand 
V.  Ray 
V.  Tyrwbitt 
Baleetti  v.  Serani 
Baldney  v.  Ritchie 
Baldwin  v.  Carter 
V.  Dixon 
V.  Hale 
Balfour  v.  Chew 
Ballard  v.  Noaks 

V.  Walker 
Balls  V.  Westwood 
Balston  v.  Benstead 
Baltimore  v.  State 
Bamfield  v.  Massey 
Banbury  Peerage  case 
Bank  v.  Steward    _ 
Bank  of  Australasia  v.  ^las 


Section 
574 
272 
26 
581 
121 
532 
37 
392,  428 
52 
560 
287 
392,  398 
548 
505 
357 
304 
25 
17 
5 
54 
28,81 
114 
546  cZ 


XIX 


Section 


Austrauisici  u-  ^'■""       ,    <  in  „ 
Middlebury«.R"tkvnd  440  a 

Woodstock  V.  Clark  i^» 


Banks  v.  Farquharson 

V.  Skain 
Barada  v.  Caundelet 
Barbat  v.  Allen 
Barb  v.  Fish 
Barber  v.  Gingeli 
V.  Goddard 
V.  Holmes 
V.  AVatts 
Baring  ».  Clarke 
V.  Reeder 
Barker  v.  Dixie 

V.  Haskell 
V.  Macrae 
V.  Ray 
Barlow  v.  Dupuy 
V.  Vowell 
Barnard  v.  Darling 
Barnes  v.  Camack 
V.  Harris 
V.  Lucas 
V.  Mawson 
V.  Tromjjowsky 
Baron  de  Bode's  case 
Barough  v.  White 
Barr  v.  Gratz 
Barrett  v.  Allen 
,  V.  Buxton 
v.  Gore 
V.  Rogers 
V.  Thorndike 
V  Union  Mut.  Fire  Ins. 
Co. 
Barrotto  v.  Snowden 


572 
420 
331 
334 
533 
200 
329 
484,  493 
505 
113 
342 
334,  340 
117 
416 
37,  116,  147,  149 
510 
167,  418 
302 
337 
238,  239,  241 
207 
137,  139 
572 
109 
171,  191 
142,  144,  539 
288 
284 
356,  547 
305 
265,  568 


Barrington  v.  Bank  of  Washing- 

ton 
Barrick  v.  Austin 
Barrow  v.  Humphreys 
Barrs  f.  Jackson 
Barry  v.  Bebbington 
V.  Ransom 
V.  Ryan 
Barstow's  case  ' 

Barthelemy  v.  The  People 
Bartlett  v.  Decreet 
V.  Delpratt 
V.  Emerson 
V.  Picker sgill 
V.  Smith 
D.  Wyman 
Bas  v.- Steele 
Bass  V.  Clive 
Bassett  v.  Marshall 

V.  Porter 
Batchelder  v.  Sanborn 
Bate  V.  Hill 
V.  Kinsey 
V.  Russell 
Bateman  v.  Bailey 
Rates  V.  Barber 

V.  N.Y.  Ins.  Company 
V.  Ryland 
V.  Thompson 
Bateson  v.  Hartsink 
Bathews  v.  Gahndo 
Battin  v.  Bigelow 
Battles  V.  Batchelder 

V.  HoUey 
Batturs  ».  §ellers     _ 
Bauerman  v.  Rademus 
Baxter  v.  Graham 
V.  Rodman 
Bay  V.  Gunn 
Bavard  v.  IMalcohn 
Bayley  v.  Osborne 
V.  Tavlor 
V.  Wylie 
Bavlies  r.  Fettyplace 
Baylis  V.  The  Atto.-Gen. 
Bayne  v.  Stone 
Bavnes  v.  Forrest 
Beach  v.  Mills 

V.  Packard 
Beachcroft  v.  Beachcroft 
Beacon  Life  &  Fire  Ass.  Co. 

V.  Gibb 
Beal  V.  Nichols 
Beale  v.  Commonwealth 

V.  Thompson 
Bealey  v.  Shaw 
Beall  V.  Beck 
281     Beaman  v.  Russell 
391  1  Beamon  v.  Ellice 


564 
174 
319 
550 
150,  153 
281 
569 
218 
108 
101 
100,  180 
109 
363 
49 
281 
559 
107,  196 
86 
80 
118 
54,  458 
241,  562 
356,  358 
108,  180 
461 
173 
423 
532 
246 
207,  339 
.  41 
110 
46,84 
199 
172 
398 
422 
400 
275 
427 
564 
516 
58 
291 
89 
70 
118 
26 
288 


292 
445 

19 
322 

17 
187 
564 
432 


XX 


INDEX   TO   CASES   CITED. 


Section 

Bean  v.  Qiiimby 

241 

Ik-aice  V.  Ja^•k^^on 

24 

IJeard  r.  Talhot 

145 

Beardslcy  r.  Richardson 

108 

Bearss  v.  Copley 

462 

Beasley  v.  Bradley 

358 

V.  IMagratb 

179 

Beatson  v.  ISkene 

251 

Beauchauip  v.  Parry 

190 

Beaumont  v.  Fell 

291 

V.  Field 

277 

V.  Mountain 

481 

Beaver  v.  Lane 

69 

Beebe  v.  Parker 

130 

139 

Beckley  i'.  Freeman 

392 

430 

Beckrow's  case 

568 

Beckwith  v.  Benner 

245 

V.  Sydebotham 

440 

Becquet  v.  McCarthy 

546 

Bedell  V.  Russell 

76 

Beech''s  case 

Co 

Beeching  v.  Gower 

421 

Beiilelman  v.  Foulk 

397 

P>eitz  V.  Fuller 

112 

174 

Beldcn  v.  Lamb 

51  a 

V.  Seymour 

26 

Bell  V.  Ansley 

180 

V.  Bruen 

284 

V.  Chaytor 

671 

V.  Firemen's  Lis.  Co. 

288 

V.  Hull  Railw.  Co. 

430 

V.  ALirtin 

287 

V.  ^Morrison                 112 

174 

323 

V.  Smith 

395 

Bellamy  v.  Cains 

347 

Bcllew  V.  Russell 

347 

Bellinger  v.  The  People 

451 

463 

Bellinger's  case 

224 

Bellows  V.  Ingi'aham 

548 

Beltzhoover  v.  Blackstock 

240 

Benaway  v.  Conyne 

432 

Bend  i\  Georgia  Ins.  Co. 

292 

Bender  v.  Froml)erg 

180 

Benjamin  v.  Hathaway 

452 

V.  Porteus 

115 

416 

V.  Sinclair 

305 

Benner  v.  Frey 

73 

Bcnnet  v.  Watson 

313, 

319 

Bennett  v.  Francis 

205 

V.  Holmes 

532 

V.  Hyde 

00 

V.  JMorley 

548 

V.  Robinson 

167 

V.  Runyon 

31 

V.  State 

369 

V.  Tennessee 

6 

V.  Watson 

319 

V.  Womack 

49 

Bennett's  case 

228 

Bent  V.  Baker 
Beutley  v.  Cooke 

V.  Hollinback 
Benton  v.  Burgot 
Bentzing  v.  Scott 
Berd  v.  Lovelace 
Bergen  v.  Bennett 

V.  The  People 
Berkley  Peerage  case 


Section 

167,  390,  418 
334,  339,  343 
118 
548 
73 
237 
46 
217 
104,  125,  128, 
131,  133,  134 
Bermon  v.  Woodbridge  201 

Bernasconi  v.  Farebrother  181 

Berrington  d.  Dormer  v.  Fortes- 
cue  359,  360 
Berry  v.  Banner  139 
Berryman  v.  Wise          58,  83,  92,  195 
Bei'thon  v.  Loughman                        441 
Berlie  c.  Beaumont                     142,  154 
Berwick  v.  Horslall                            277 
Bests  V.  Jones                                     427 
Betham  «.  Benson  113 
Betts  V.  Badger                                  571 
V.  Bagley                   ,                548 
V.  Star                                         537 
Bevan  v.  Waters                        241,  245 
V.  Williams  195 
Beveridge  v.  Minster                254,  387 
Beverly  v.  Craven  144 
Beverley's  case  189 
Bibb  V.  Thomas                                    273 
Bicknell  v.  Hill                                   498 
Biddis  V.  James                 480,  489,  505 
Biddulph  V.  Ather                              139 
Bigelow  V.  CoUamore                        277 
V.  Winsor                             532 
Biglow  u.  Sanders                                118 
Biggs  V.  Lawrence                             284 
Bilbie  V.  Lumley                                 212 
Billings  V.  Billings                               281 
Bingham  v.  Cabot                              491 
V.  Dickey  65 
V,  Rogers                            348 
V.  Stanley                             81 
Birch  V.  Depeyster                              280 
Birchard  v.  Booth                            197  a 
Bird  V.  Hueston                                  148 
V.  Randall                                     531 
Birt  V.  Barlow                             107,  493 
V.  Kershaw                           391,  416 
V.  Rothwell  6 
V.  Wood                                      395 
Bishoj)  V.  Chambre                              564 
V.  Cone                                   484 
V.  Dotey                                 271 
Bissell  V.  Briggs                        542,  548 
V.  Edwards                             505 
V.  Morgan                             81  a 
Bixbyy.  Franklin  Lis.  Co.                494 
Black  i\  Ld.  Bravbrook              70,  514 


INDEX   TO    CASES   CITED. 


XXI 


llo,  17: 


Section 
I,  2S4 
•205 
311 
137 
356,  389,  o'Jo 
550 


Black  V.  Lamb 
Blackburn  t\  iScholes 
Blacklnirne  v.  Ilargrave 
Blackctt  V.  Lowes 

V.  Weir 

Blackham's  case 

Blackwell  *'.  Bull  288 

Blad  V.  Bamlield  541,  542 

Blade  v.  Xolan  5G8 

Blair  v.  Seaver  3G9 

Blake  v.  Doherty  288 

V.  Pilford  251 

V.  Buss  563 

V.  Sanderson  25 

V.  White  109 

Blakemore  v.  Glamorganshire  536,  537 

Blanchard  ii.  Ellis  24 

V.  Youns  74,  91,  561 

112 


175 


Bland  v.  Hasselrig 
V.  Swalford 
Blaney  v.  Rice 
Blantern  v.  Miller 
Blewett  V.  Tregonning 
Bligh  v.  Brent 
Blight  V.  Fisher 
Blight's  Lessee  v.  Rochester 
Bliss  V.  Brainerd 

V.  Mclntire 

V.  Mountain 
Bliven  v.  N.  England  Screw  Co 
Blodgett  V.  Jordan 
Blood  V.  Goodrich 

V.  Rideout 
Bloodgood  V.  Jamaica 
Bloor  V.  Davies 
Blossom  V.  Cannon 
Blower  v.  Hollis 
Bloxam  v.  Elsee 
Blundell  v.  Gladstone 
Blurton  v.  Toon 
Blythe»i;.  Sutherland 
Boardman  v.  Reed 
Bodine's  case 
Bodmin  Mines  Co.  in  re 
Bodwell  V.  Osgood 

V.  Swan 
Bogardus  v.  Trinity  Church 
Bogart  V.  Brown 
Bogert  V.  Cauman 
Boileau  v.  Rudlin 
Bolin  V.  Mellidew 
Bolivar  Man.  Co.  v.  Neponset 

Man.  Co 
Bolles  V.  Beach 
Bolton  V.  Bishop  of  Carlisle 

V.  Corp.  Liverpool       238 

Boltz  V.  Ballman 
Bond  v.  Fitzpatrick 


171 


319 
301 
349 
468 
270 
316 

25 
310 
668 
397 
293 
505 
304 
108 
331 
392 
20,  46 
511 

96 

291 

572 

145 

301 

13  a 

5 

8 

55 
145 
560 
275 
551 
320 


17 
573 
668 
240, 
244 
39 
190 


Section 

Bond  V.  Ward 

180 

Booge  V.  Parsons 

485 

Boorman  v.  Brown 

394 

V.  Johnson 

25J 

S,  275 

Boorne's  case 

214 

Booth  V.  Swezey 

190 

Bootliby  V.  Stanley 

664 

Boothwick  V.  Carruthers 

81 

Borum  i\  Fonts 

239  a 

Boston  India-Rubber  Factor 

Y 

V.  Iloit 

546  ^ 

Boston  V.  Weymouth 

16(. 

),  570 

Boston  &  Wore.  R.R.  Corp. 

V.  Dana         93,  108,  197, 

252  a 

,  4G9 

Boston  &  P.  R.R.  v.  Midlan 

i 

R.R. 

258 

Boston  &  Wore.  R.R.  Corp 

V.  Old  Colony  R.R.  Corp. 

440 

Bostwick  V.  Leach 

271 

Boswell  V.  Smith 

38 

Bosworth  V.  Crotchet 

122 

,  153 

Botham  v.  Swingler 

95 

,422 

Botsford  v.  Moorhouse 

265 

Bottomley  v.  Forbes 

292 

V.  United  States 

53 

V.  AVilson 

391 

,  401 

Boucher  r.  Lawson 

488 

Bouldin  V.  Massie 

558 

BouUemet  v.  State 

6a 

Bound  V.  Lathrop 

174 

Boui-ne  v.  Boston 

561 

V.  Gatliffe 

293 

V.  Turner 

406 

Bours  V.  Tuckerman 

316 

Bowditch  V.  Mawley 

69 

Bowen  v.  Bell 

62 

Bower  ».  The  State 

218 

Bowerbank  v.  Monteiro 

283 

Bowlby  V.  Bell 

267 

Bowles  V.  Neale 

81 

Bowman  v.  Norton 

239 

V.  Noyes 

356 

V.  Rostron 

211 

V.  Sanborn          322, 

484 

577 

V.  Taylor 

22 

V.  Woods 

440 

Bowsher  v.  Calley 

180 

Boyd  V.  Ladson 

118 

V.  McConnell 

656 

V.  McLean 

206 

Boydell  y.  Drummond 

112, 

268 

Boyden  v.  Burke 

108 

V.  Moore 

110, 

205 

Boyle  V.  Webster 

197  a 

V.  Wiseman 

451 

BojTiton  V.  Kellogg 

54, 

461 

V.  Willard 

40 

Boys  V.  Williams 

291 

Brace  v.  Ormoud 

474 

xxu 


INDEX   TO   CASES   CITED. 


Section 

Bracc'girdle  v.  Bailey  445 
Brackett  v.  lloitt  513 
V.  Mountford  569  a 
V.  Norton  488,  48'J 
Bradford  v.  Mauley  305  a 
Bradlee  v.  Neal  353 
Bradley  v.  Arthen  491 
V.  Bradley                 527  a,  578 
V.  Goodyear  118 
V.  Holdsworth  270 
V.  Neal  356 
r.  llicardo  443 
Bradsbaw  v.  Bradshaw  289,  290 
Bradstrcet  v.  Neptune  Ins.  Co.  18,  541 
Brady  v.  Brady  440  a 
Brain  v.  Preece  116 
Brainard  v.  Buck  197 
^  V.  Clapp  80 
Brandao  v.  Barnett  5 
Branden  v.  Gowing  242 
Brander  v.  Ferriday  *        138 
Brandigee  v.  Hale  420 
Brandon  v.  Cabiness  171 
Brandrani  v.  Wharton  174 
Brandt  w.  Klein  241,245 
Brard  v.  Ackerman  241 
Brashier  v.  Jackson  73 
Brattle  St.  Ch.  v.  Bullard  17 
V.  Hubbard  189 
Bray  (The)  Peerage              _  20 
Brazen  Nose  College  v.  Salis- 
bury 88,  491 
Brenibridge  v.  Osborne  38 
Breton  i\' Cope  97,  484 
Brett  V.  Beales          137,  139,  143,  481 
Brewer  v.  Brewer  109 
V.  Knapp  38 
V.  Pahuer  87,  9(5 
Brewster  v.  Countryman  303 
V.  Doan  llo 
Briant  v.  Eicke  73 
Bridge  v.  Eggleston            53,  180,  397 
V.  Gray  112,  532 
V.  Wellington  423 
Bridges  v.  Armour  354 
Bridgewater's  (Ld.)  case  497 
Bridgnian  v.  Jennings  189 
Briggs  V.  Crick  397,  398 
V.  Georgia  117 
V.  Greenfield  et  al,  357 
V.  Wells  532 
Brigham  v.  Palmer  569 
V.  Peters  114,  577 
V.  Rogers    '  281,  303 
V.  Smith  24 
Bright  V.  Sugg  73 
Brighton  v.  Walker  322 
Brind  v.  Dale  81 
Briukerhoffr.  Remson  •         272 


Brisco  V.  Lomax 
Brister  v.  State 
Bristol  V.  Dan 
V.  Slade 


Section 

139 
214 
171 

332 


Bristow  V.  Wright      51,  58,  60,  63,  66 

Britton's  case  226 

Broad  v.  Pitt  247,  248,  249 

Brock  V.  Kent  182 

V.  Milligan  3G9,  370 

V.  Sturdivant  303 

Brockbank  v.  Anderson  423 

Brocket  v.  Foscue  26 

Brogy  V.  Commonwealth  103 

Bromage  v.  Prosser  34 

Bromfield  v.  Jones  51 

Brooks  V.  Barrett  75,  77 

V.  Bemis  70 

V.  Blanchard  73 

r.  Lowry  68 

V.  Tichburne  581  a 

V.  White  305 

Broom  v.  Bradley  394 

V.  Wootom  533 

Brotherton  &  Livingston  358,  373 

Brown  v.  Bellows  443,  444,  462 

V.  Brooks  262 

V.  Brown        280,  356,  395,  429 

0.  Burnes  358 

•  v.  Bryne  292 

V.  Cambridge  305 

V.  Edson  505,  513 

V.  Getchell  316 

V.  Hicks  485,  493 

V.  Howard  358 

V.  Kimball  574 

V.  King  42 

V.  Lasselle  341 

V.  Leeson  253 

V.  Lynch  420 

V.  Mooers  4G9 

V.  Payson  •       245 

V.  Philadelphia  Bank  5 

V.  Pinkham  602 

V.  Saltonstall  290 

V.  Slater  286,  287 

V.  State  •        217 

V.  The  Independence  498 

V.  Thorndike  287,  288 

V.  Wood  19,  443 

V.  Woodman  83 

Brown's  case  218,  344 

Browne  v.  Gumming  471 

V.  Murray  74 

Bruff  V.  Conybeare  298  a 

Brunc  v.  Thompson  6 

Brunswick  v.  McKeen  20 

Brush  D.  Blanchard  513 

V.  Wilkins  484 

Bryan  v.  Wear  483 


INDEX   TO    CASES   CITED. 


SXIU 


Section 
Bryant  v.  rtittcnbush  858 

V.  The  lioval  Exchange 


Ass.  Co. 
Ikichanan  v.  ]\Ioore 
Ijucher  v.  Jari-att 
Buck  V.  Apjilcton 
Buckler  v.  MiHard 
Buckley  v.  Beardsley 
Buckminster  r.  Ferry 
Bucknam  ?'.  Barnuni 
Bulkley  ik  Landon 
Bull  V.  Clarke 
V.  Loveland 
V.  Strong 
Bullard  v.  Briggs 
BuUen  v.  Michel 
Bullock  V.  Koon 
Bunbury  v.  Bunbury 

V.  Mathews 
Bmiker  v.  Shed 
Bunn  V.  Winthrop 
Bunnell  v.  Butler 
Burbank  v.  Gould 
Burchficld  V.  Moore 
Burd  V.  Ross 
Burden  v.  Cleveland 
Burgess  v.  Lane 

V.  Merrill 

V.  Steer 
Burghart  i'.  Angerstein 
Burgin  v.  Chenault 
Burke  v.  Miller 
Burleigh  v.  Stott 
Burlen  v.  Shannon 
Burley's  case 
Burling  v.  Patterson 
Burlington  v.  Calais 
Burn  V.  Miller 
Burnett  v.  Phillips 

V.  Smith 
Bumham  v.  Adams 
V.  Allen 
V.  Ay  re 
V.  Ellis 
V.  Morrissey 
Burns  v.  Burns 

V.  Fay 
Burrell  v.  Nicholson 
Burrougli  v.  Martin 
Burt  V.  Palmer 
Burtenshaw  v.  Gilbert 
Burton  v.  Griffiths 

V.  Hinde 

v.  Issitt 

V.  Plummer 
Burgoyne  r.  Showier 
Busby  V.  Greenslate 
Bush  V.  Railing 
Bushell  V.  Barrett 


292,  294 
145 

35 

284 
268 
77 
177 
68 
554 
246,  452 
356 
266 
139,  142 
87 
239,  240 
92 
116 
288 
461 
26 
565,  568 
.       416 
551 
167,  418 
356 
•       58 
493 
301 
447,  532 
174 
525 
229 
572 
175 
803 
70 
532 
118 
74 
564 
113 
309 
273 
118 
76,  474 
436 
182 
273 
49 
891,  405 
112 
436,  437 
564 
397 
413 
373 


Bushwood  V.  Pond 
Bussard  v.  Levering 
Bustin  V.  Rogers 
Butcher  v.  Stuart 
]?utcher's  Co.  v.  Jones 
Butler  V.  Alnutt 

V.  Benson 

V.  Butler 

V.  Carver 

V.  Collins 

V.  Cooke 

V.  Gale 

V.  Moor 

V.  Mountgarret 

V.  Tufts 

V.  Warren 

V.  Wright 
Buttrick  v.  Holden 
Butts  V.  Swai'twood 
Buxton  V.  Cornish 


Section 

58,  72 

40 

118 

285 

422 

40 

436 

423 

95,  422 

53 

392 

280 

247 

40,  104  a,  131 

421 

391,  402 

116 

532 

369 

304 


Cabot  V.  Givin 
Caddy  v.  Barlow 
Cad  well  V.  The  State 
Cady  V.  Shepherd 
Cailland  v.  Vaughan 
Caine  v.  Horsefall 
Calder  v.  Rutherford 
Calhoun  v.  Dunning 
Calkins  v.  Evans 
Call  V.  Dunning 
Calvert  v.  Flower 
Cambridge  v.  Lexington 
Camden  v.  Doremus 
Cameron  i\  Lightfoot 
Camoys  Peerage  (The) 
Camp  V.  Dill 
Campbell  v.  Hodgson 
V.  Phelps 
V.  Rickards 
V.  State 
V.  Tousey 
V.  Tremlow 
Canal  Co.  v.  Railroad  Co. 
Cane  v.  Lord  Allen 
Cannell  v.  Curtis 
Cauney's  case 
Cannon  v.  Jones 
Card  V.  Grinman 
Careless  v.  Cai'cless 
Carleton  v.  Patterson 
V.  Whitclier 
Carlisle  v.  Burley 
L\  Eady 
V.  Garland 
V.  Ilunley 


83,  92 

471 

54 

112,  174 

320,  324 

280,  294 

78 

260 

569,  572 

563 

47,  109,  293 
421 
210 
105 
174 
281 
533 
441 
156 
392 
339 
490 
80 
83,  92 
165 
402 
273 
289 
108,  322 
427 
392 

95,  422.  426 
180 
462 


XX  ly 


INDEX   TO    CASES   CITED. 


Section 

Carli-sle  (Mayor  of)  v.  BLamlre       211 

Carlos  V.  Brook  461 

C'arinack  v.  The  Coinmonwealth        ISO 

Carmalt  v.  Post  440 

C'armartlitMi,  Mayor,  &c.  i'.  Lewis      73 

Carne  v.  Litclilield  4ol 

V.  Nicholl  109 

Carpenter  v.  Ambroson  434  a 

V.  Dame  86 

V.  GrolF  163 

r.  Havward  49 

V.  Ilollister  190 

V.  King  281 

V.  Leonard  101 

V.  AVhal  54,  462 

Carpenters,. »S:c.  of  Shrewsbury 

V.  Hay  ward  405 

Carpniael  v.  Powis  239,  240 

Carr  v.  Bnrdis  571 

V.  Cornell  334 

V.  Gale  421 

Carrington  v.  Carnock  516 

V.  Jones  155 

V.  Ptoots  271 

V.  Sthnson  322 

Carriss  v.  Tattershall  664 

Carroll  v.  Bowie  38 

V.  Norwood  144 

V.  The  State  108 

V.  Tyler  116,  120 

V.  Waring  39 

Carskadden  v.  Poorman  104 

Carson's  ease  65 

Carter  v.  Bennett      196,  204,  210,  523 

V.  Boeliem  440,  441 

V.  Buchanon  108 

V.  Jones  76 

V.  Pierce  408,  409 

V.  Prvke  52 

V.  Wilson  502 

Cartwright  v.  Williams  426 

Carver  v.  Jackson         22,  23,  189,  523 

V.  Tracy  173 

In  re  272 

Cary  v.  Adkins  185 

V.  Gerrish  38 

V.  Pitt  577 

Case  V.  Potter  118 

V.  Reeve  523 

Cass  r.  Cameron  409 

Cassidy  v.  Stewart  6 

Casson  v.  Dade  272 

Cassis  case  220,  222 

Castellana  v.  Peillon  375 

Castelli  V.  Groome  320 

Castle  V.  Bidlard  63,  358 

Casy  V.  O'Shaunessy  103 

Cates  V.  Hardacre  451 

Catlett  V.  Paeilic  Ins.  Co.  484 


Section 

Catlin  V.  Bell 

284 

Caton  V.  l^enox 

165 

Cator  V.  Stokes 

498 

Catt  V.  Howard 

179,  201,  439 

Caufman  v.  Cong,  of  Cedar 

Spring              .  145 

Cavalier  v.  Collins  ^    118 

Cavan  v.  Stewart  514 

Cazanove  v.  Vaughan       516,  553,  554 

Central  Bridge  Corp.  v.  Butler  74 

Chabbock's  case  219,  222,  379 

Chad  V.  Tilsed  293 

Chadsey  v.  Greene  182 

Chadwick  v.  Upton  402 

V.  Burnlev  286 

Chaffee  v.  Baptist  M.C.  272 

V.  Thomas  420 

Chalfant  v.  Williams  oOf) 

Chamberlain  v.  Carlisle  527,  531 

V.  Gorham  349 

V.  AVilison  451,  451  a 

Chamberlain's  case  311 

Chambers  v.  Bernasconi    109,  115,  152 

Champion  v.  Plumnier  268 

Champney's  case  257 

Champneys  v.  Peck  40,  116 

Chance  v.  Mine  423 

Chandler  v.  Grieves  5 

V.  Home  432 

V.  Le  Barron  576,  581 

V.  Mason  385 

V.  Morton  385 

V.  Von  Boeder  49 

Chanoine  v.  Fowler  5,  488 

Chapel  V.  Washburn  181 

Chapin  v.  Curtis  523 

Chajiman  v.  Beard  196 

V.  Callis  285 

V.  Chapman  103 

V.  Coffin  469 

V.  Cowlan  135 

V.  Emden  81 

V.  Graves  356,  357 

V.  Searle  207,  208 

V.  Twitchell  182 

V.  Walton  441 

Chap])ell  V.  Bull  24 

Chardon  v.  Olipliant  112 

Charleston,  etc.  11.11.  Co. 

V.  Blake  114  a 

Charlton  v.  Lawry  118 

Charnock's  case  379 

Chase  v.  IlathaAvay  603,  613,  518 

V.  Jewett  281 

V.  Lincoln  440 

V.  Levering  357 

V.  Smith  120 

V.  Spencer  118 

Chatfield  v.  Fryer  138 


INDEX   TO    CASES   CITED. 


XXV 


Section 

Chatfield  v.  Lathrop  423 

Chaurand  v.  Angerstein  280,  440 

Cheetliain  v.  Ward  427 
Chelsea  Water- Works  v.  Cowper     21, 

570 

Chelmsford  Co.  v.  Demarest  181 

Chenango  v.  Birdsall  356 

Cheney's  case  289 

Cherry  v.  Boyd  145 

V.  Slade  301 

Chesley  v.  Frost  oG8 

Chess  V.  Chess           163,  165,  166,  168 

Chester  v.  Bank  of  Ivingston  305 

Cheyne  v.  Koops  395 

Child  V.  Chamberlain  358 

V.  Grace  199 

Childrens  v.  Saxby  348 

Childress  v.  Cutter             484,  493,  498 

Chippendale  v.  Thurston  „   ^'''t 

Chirac  v.  Reinicker              73,  237,  245 

Chitty  V.  Dendy  6 

Choate  v.  Burnham  293 

Choteau  v.  Kaitt  562 

Christian  v.  Combe  212 

Christie  v.  Bishop  178 

Church  V.  Hubbart       4,  487,  488,  514 

V.  Shelton  171,  195 

Churchill  v.  Suter  379,  385 

V.  Wilkins  58 

Churchman  v.  Smith  118 

Cilley  V.  Tenny  303 

Cincinnati  v.  WTiite  207 

Cist  V.  Zeigler  531 
Citizeu''s  Bank  v.  Nantucket 

Steamboat  Co.  426 
City  Bank  v.  Adams  281 
City  Bank  of  Baltimore  v.  Bate- 
man                                 113,  332,  452 
City  Council  v.  King  331 
City  of  London  v.  Gierke  139 
Clatfin  i\  Carpenter  271 
Clagett  V.  BhiUips  240_a 
Clancy's  case                   •  373 
Clapp  V.  Balch  73 
V.  MandeviUe  389 
V.  Tirrell  26 
Clarges  v.  Shei'win  639 
Clark  V.  Alexander  174 
V.  Barnwell  305 
V.  Bigelow  440 
V.  Bradshaw  112 
V.  Carter  426 
V.  Courtney  575 
V.  Eckstein  5G4 
V.  Faunce  17 
V.  Fletcher  563 
V.  Gilibrd  284 
V.  Gleason  112 
V.  Gray  66,  69 


Section 

Clark  V.  Hopkins  yO 

V.  Ploughman  191 

V.  Irvin  537 

V.  Johnson  428 

V.  Kirkland  392 

V.  Lucas  394,  397 

V.  Lyman  40 

V.  Magruder  116 

V.  Munyan  301 

V.  Richards  239  a 

V.  Saunderson  575 

V.  Spence  81,  348 

V.  Trinity  Church  493 

V.  Vorce  437 

V.  Waite  180 

V.  Wilmot  ■  116 

Clark's  case  65 

Ex'rs  V.  Carrington  180 
Ex'rs  V.  Reimsdvk       178,  257, 
2G0,  351 

Lessee  v.  Hall  375,  376 

Clarke  v.  Bank  of  IVIississippi  489 
V.  Clarke                196,  204,  207 

V.  Courtney  84,  142 

V.  Gannon  408,  4^0 

V.  Robinson  551 

V.  Safferey  435 

V.  Wvburn  361 
Clarkson  v.  Woodhouse    139,  141,  143 

Clary  v.  Grimes  189 

Clawson  v.  Eichbaum  38 

Claxton  V.  Dare  139 

V.  Swift  533 

Clay  V.  Langslow  181 

V.  Stephenson  320 

V.  Williams  241 

Clayes  v.  Ferris  469  a 

Clayton  v.  Gregson  280 

Clealand  v.  Huey  164,  165 

Cleave  v.  Jones  237 

Cleaveland  v.  Flagg  301 

Cleaves  r.  Lord  68 

Cleveland  v.  Burton  200 

Clement  v.  Brookes  457 

V.  Durgin  302,  304 

Clementi  v.  Goulding  5 

Clements  v.  Hunt  103 

Clementson  v.  Gandy  288 

Clerke  i'.  Isted  69 

Clermont  v.  Tulidge  581 

Cleves  V.  Foss  269 

Chlibrd  v.  Hunter  445 

V.  Parker  564 

V.  TurriU  285,  304 

Cllnan  v.  Cooke  269 

Cline  V.  Little  427 

Clinton  v.  Hooper  296 

Clipper  (The)  v.  Logan  440 

Close  V.  Olney  451 


XXVI 


INDEX  TO    CASES   CITED. 


Section 

Section 

Clothier  v.  Chapman 

52, 

137,  115 

Conunonwealth  v.  Abbott 

49 

Cloutman  v.  Tunison 

41)5 

V.  Anthes 

49 

Clonji-h  V.  Bowman 

289 

V.  Bachelor 

309,  370 

Cliiggage  V.  Swan 

116,  120 

v.  Baird 

331 

Cluunes  V.  Pezzey 

37 

V.  Becklcy 

05 

Coates  V.  Birch 

241,  245 

V.  Bigelow 

97 

Cobb  V.  Newcomb 

40 

V.  Bolcom 

513 

Cobleigh  v.  Young 

20 

V.  Bosworth 

381 

Coburn  i'.  Odell 

451,  451  a  1 

V.  Briggs 

341 

Coclirau  v.  Amnion 

358 

V.  BuUard 

284 

Cocks  V.  Purdy 

487 

V.  Buzzell 

52,  371, 

Cockshott  V.  Bennett 

172 

449 

Coe  V.  liutton 

197 

V.  Bvi'on 

450 

Collin  V.  Jones 

254,  33S 

V.  Ckll 

199 

Coghan  v,  Williamson 

572 

V.  Carey 

577,  5.S0 

Cogswell  V.  Dolliver 

118 

V.  Casey 

161  b 

Cohen  V.  Templar 

246 

V.  Castles 

573  b 

Coit  V.  Milliken 

4,479 

V.  Chase 

484 

V.  Starkweather 

288 

V.  Churchiir 

461 

v.  Tracy 

112,  174 

V.  Clark 

81  b 

Colbern's  case 

340 

V.  Col)b 

138 

Colcloiigh  i\  Smith 

301 

V.  Dame 

373 

Cole  V.  Anderson 

118 

V.  Dana 

254  a 

V.  Cole 

192 

V.  Davidson 

563 

V.  Hawkins 

316 

V.  Downing 

382,  501, 

V.  Jessup 

437 

513 

Cole's  Lessee  v.  Cole 

376 

V.  Drake 

229,  247 

Coleman  v.  Anderson 

20,46 

V.  Dudley 

205 

In  re 

272 

V.  Eastman  197  a,  358, 

V.  Southwick 

101 

303 

,  445,  581 

V.  Wolcott 

349 

V.  Eberle 

233 

Coles  V.  Trecothick 

269 

V.  Eddy 

81  c 

CoUett  V.  Lord  Keith 

193 

V.  Elisha 

537 

Collier  i\  Nokes 

192 

V.  Emery 

91,  561 

V.  Simpson 

440 

V.  Ford 

513 

Collins  V.  Bayntun 

571 

V.  Freely 

310 

V.  Blante'rn 

284 

V.  Frost 

414 

V.  Godefroy 

310 

V.  Galavan 

434  a 

V.  Lemasters 

437 

V.  Garth 

49 

V.  ]VIatthews 

502 

V.  Gibson 

158 

V.  Maule 

84 

V.  Goddard 

449 

V.  McCrummen 

420 

V.  Green 

375,  376, 

Colpovs  V.  Colpoys 

288 

421,  505 

Colseil  V.  Budd 

39 

V.  Hargesheimer      430 

Colson  V.  Bonzey 

484,  494 

V.  Ilarman 

220,  221 

Colt  V.  Miller 

66 

V.  Harvey 

197 

Columbia  (Bank  of)  « 

.  Magruder  423 

V.  Harwood 

108 

Columbia  Ins.  Co.  v.  Lawrence             2 

V.  Hawkins 

34,  81  c, 

Columbia  i\Ian,  Co.  v. 

Dutch 

353,  356 

462 

Colvin  V.  n.  M.  Proc. 

Gen. 

30 

V.  Hill 

252,  366 

Comlje  V.  Corp.  of  London 

240  a 

V.  Hills 

370 

V.  Pitt 

210 

V.  Horton 

537 

Combs  V.  Winchester 

402 

V.  How 

223 

Commercial  Bank  of 

Albany 

V.  Hunt 

449 

V.  Hughes 

387 

V.  Ilutcliinson           367 

Commercial  Bank  of  Buffalo 

V.  Ingraham 

469 

V.  Kortwright 

568  a 

V.  Jeffries 

40,  197  a. 

Commercial  Bank  of  Natchez 

581 

V.  Smith 

206 

V.  Keuuey 

197,  199 

INDEX   TO   CASES   CITED. 


XXVll 


Section 
Commonw(Talth  v.  Kimball  79 

V.  King  158 

V.  Knapp        200,  229, 
231,379 
V.  Kneeland  5 

V.  La  hoy  79 

V.  Littk-john  484 

V.  Mausou       335,  303 
V.  Marsh         330,  334, 
353,  357,  363 
V.  Maxwell  78 

V.  McKie  81  b 

V.  McPike  108,  158 
V.  Montgomery  108 
V.  Morev  219,  220, 
223 
V.  Mosler  222 

V.  Moulton  412 

V.  Murphy  54,  462 

V.  Koi'cross  86 

V.  Pamnenter  05 

V.  PauU  403 

V.  Pease  284 

V.  Pejepscot  Pro- 
prietors 24 
V.  Phillips  601 
V.  Porter  49 
V.  Richards  165 
V.  Ptoark  509 
V.  Robbins  341 
V.  Robinson  335,  407 
V.  Rogers  81  c,  373 
V.  Sackett  450  a 
V.  Samuel  78 
V.  Shaw  451, 450  a,  457 
V.  Shepherd  253,  344 
V.  Slocum  275 
V.  Smith  252,  370 
V.  Snell  362 
V.  Stow  80 
V.  Taylor  223 
V.  Thurlow  79 
V.  Tihlen  252 
V.  Tuckermau  229 
V.  Tuey  74 
V.  Turner  53 
V.  Vass  158,  159 
V.  AVaite  414,  423 
V.  Walden  34 
V.  Webster  13  a,  18, 
54,  05,  81  b,  570 
V.  Welch  442 
V.  Wilson  440,  409, 
497 
V.  Woelper  493 
V.  York  18,  81  b 
Comparet  v.  Jernegan  489 
Comstock  V.  Hadlyme     74,  75,  70,  77, 

409 


Sectiou 

Comstock  c.  Paie 

392,  4oU 

V.  Ray  lord 

392 

Connecticut  v.  Bradish 

331 

Conover  v.  Bell 

452 

Conrad  v.  Grilley 

402 

Conyers  v.  Jackson 

71 

Cook  V.  Ashmead 

117 

V.  Booth 

293 

V.  Brown 

402 

V.  Loxley 

207 

V.  Moore 

53 

V.  I'arsons 

272 

V.  Remington 

349 

v.  Soltan 

40 

V.  Stearns 

270 

V.  Totton 

21 

V.  Wood 

84 

Cooke  V.  Curtis 

409 

V.  Jenner 

533 

V.  Wilson 

0 

V.  AVoodrow 

572,  575 

Cooley  V.  Norton 

113,450 

Coolidge  V.  Learned 

17 

V.  Kew  York  Firemen's 

Lis.  Co.  484 

Coombs  V.  Coether  139,  484 

V.  Winchester  52,  449 

Coon  V.  The  State  215 

V.  Swan  239  a  ■ 

Cooper  V.  Bocket  564,  580 

V.  Gibbon  37 

V.  Cranberry  40 

V.  Marsden  572 

V.  Morrell  118 

V.  Mowry  207 

V.  Shepherd  533 

V.  Smith  201,  208 

V.  Wakley  70 

V.  Whitehouse  73 

Coote  V.  Berty  54 

Cope  V.  Cope  28,  253,  344 

Copeland  i\  Tomlin  171 

V.  Watts  246 

Copes  V.  Pearce  103 

Copp  V.  Uiiham  452 

Corbett  et  ul.  v.  Barnes  533 

V.  Corbett  75 

Corbin  v.  Adams  113,  2s4 

Corinth  v.  Lincoln  108,  192 

Cornelius  t'.  State  108 

Cornell  v.  Green  105 

V.  Vanartsdalen  338 

Cornish  v.  Puixh  341 

V.  Searell  207 

Cornville  v.  Brighton  108 

Cornwall  v.  Isham  175,  333 

V.  Richardson  oo 

Corporations  (the  case  of)  46 

Corps  V.  Robinson  197 


XXVlll 


INDEX   TO    CASES   CITED. 


Section 

Corse  V.  Patterson  '631 

Corsen  v.  Dubois  24G,  558 

Corsor  v.  Paul  197 

Cort  V.  IJirkbeck  139 

Corwciu  V.  Ilaines  331 

Cory  V.  Brctton  11)2 

Cossens  v.  Cossens  23,  26 

Ex  parte  451 

Cossliam  V.  Goldney  395 

Coster  V.  Baring  559 
Costigan  c.  Moliawk  &  Hudson 

K.  Co.  74 
Cotes  V.  Davis  185 
Cottle  V.  Payne  39 
Cotton  V.  James  76 
V.  Luttrell  358,  361 
I'.  Witt  310 
CottriU  V.  Myrick  302,  440 
Couc-li  V.  Meeker  283,  284 
CouL-^on  V.  Walton  5G4 
Couuden  v.  Clarke  .  289 
Courteen  v.  Touse  435 
Courtnay  v.  Hoskins  544 
Covanliovan  v.  Hart  163 
Coveney  v.  Taunahill  245 
Covington,  &c.,  R.  11.  Co.  v.  In- 
gles 113 
Cowden  v.  Reynolds  443 
Cowling  V.  Ely  179 
Cowper  V.  E.  Cowper  37 
Cox  V.  Allingham  618 
V.  Bi-ain  205 
V.  Copping  474 
V.  Couveless  563 
V.  Davis  572 
V.  Hill  452 
V.  Morrow  488  a 
V.  Painter  73 
V.  Parry  27 
V.  Williams  385 
Coxon  V.  Lyon  61 
Coye  V.  Leach  30 
Coyle  V.  Coyle  84 
Crabtree  v.  Clark  564 
Crafts  V.  Hibbard  301 
Craib  v.  D'Airth  173 
Craig  V.  Brown  505,  506 
V.  Cundel  392 
V.  State  461 
Craigin  v.  Carleton  527  a 
Crane  v.  Marshall  109,  570 
V.  Morris  23 
Crary  v.  Si)rague  163 
Craven's  Case  '          65 
Cravin  v.  Shaird  118 
Crawford  v.  Mon-ell  56 
V.  Spencer  281 
Cray  v.  Halls  201 
Creamer  v.  Stephenson  285 


Section 

Crease  v.  Barrett     103,  128,  130,  136, 
139,  153,  189 

Creeby  v.  Carr  445 

Creed,  lii  re  41 

Crenshaw  v.  Davenport  51  a 

Crew  V.  Blackburn  475 

V.  Saunders  475 

Criddle  v.  Criddle  190 

Crippen  i\  Dexter  469 

Crisp  0.  Platel  240 

Crispin  v.  Daglioni  546  b 

V.  Williamson  60 

Critclilow  V.  Pai-ry  196 

Crocker  v.  Crocker  289 

Crofton  V.  Poole  195 

Crofts  V.  Marshall  280 

Cromack  v.  lleathcote  240,  241 

Cronk  v.  Frith  572 

Crosby  v.  Percy  292,  572 

V.  Wads  worth  271 

Ci'oss  V.  Kave  92,  195 

V.  Mill  .485 

Crossfiekrs  Case  255 

Croudson  v.  Leonard  5,  541 

Croughton  v.  I51ake  142 
Crowley  v.  Page  52,  81,  449,  462 
Crowninshield  v.  Crowuinshield        74, 

75,  76 

Crowninshield's  Case  111 

Crowther  v.  Hopwood  373 

Cubbison  v.  McCreary  369 

Cudlip  V.  Rundle  60 

Culkin's  Case  65 

Cumberland  Bank  v.  Hall  564 

Cummin  v.  Smith  195 

Gumming  v.  French  192 

Cummings  v.  Arnold  302,  304 

Cundell  V.  Pratt  454,  456,  459 

Cunliffe  V.  Sefton  572,  574 

Cunningham  i\  Knight  428 

V.  Otis  320 

Cupper  V.  Newark  353 

Curren  v.  Crawford  117 

Currie  v.  Child  572 

Curry  v.  Lyles  26 

V.  Raymond  485 

Curtis  V.  Belknap  573  b 

V.  Ccnti-al  Railroad  323 

V.  Graham  358,  389 

V.  (iroat  533 

V.  ^larch  488  a 

V.  Rickards  38 

V.  Strong  369,  370 

V.  Wlieeler  74 

Curzon  v.  Lomax  130,  139 

Cushing  V.  Billings  74 

Cushman  v.  Loker  375,  420 

Cussons  V.  Skinner  569  a 

Cutbush  V.  Gilbert  84,  116,  120 


INDEX  TO    CASES   CITED. 


XXIX 


Cutler  V.  Pope 

V.  Wriffht 
Cutter  V.  Nd\vling  , 

V.  Powell 
Cutts  V.  Pickering 
Cults,  in  Error,  v.  United  States 
Cuyler  v.  McCartney 


D. 


Da  Costa  v.  Jones 
Daggett  V.  Slmw 

Dailey  v.  N.Y.  &  N.H.  RaUw 
Daily  v.  State 
Dale  V.  Hunifrey 
Dalison  v.  Stark 
Dalrymple  v.  Dalrymple 

Dalston  v.  Cotesworth  37 

Dan  et  al.  v.  Brown  172,  174,  17G, 

27;  J 

Dana  v.  Fielder  292 

Daniel  v.  Daniel  239  a 

V.  North  17 

V.  Pitt  182 

V.  Wilkin  142,  145 

Daniels  v.  Conrad  449 

V.  Potter  111,  176 

Darby  v.  Ouseley  201,  439 

Dartmouth  College  v.  Woodward    331 

Dartmouth  (Countess)  v.  Roberts    189 

Dartmouth  (Lady)  v.  Roberts    46,  512 

Davenport  v.  Freeman  385 

V.  McKinnie  559 

V.  The  Commonwealth      49 

David  V.  Moore  348 

Davidson  v.  Bloomer  572 

V.  Cooper  568 

Davies  v.  Davies  408,  463 

V.  Humphreys  115,  152 

V.  Lewis  137 

V.  Lloyd  115,  147 

V.  Lowndes  105 

V.  Morgan     135,  154,  333,  395 

V.  Mon'is  333 

v:  Pierce  109,  147,  189 

V.  Ridge  17G 

V.  Waters  241 

Davis  V.  Barr  421 

V.  Barrett  320 

V.  Barrington  281 

V.  Campbell  109 

V.  Carlisle  564 

&  Carter's  case  374 

V.  Dale  445 

V.  Dinwoody  334,  340 

V.  Fuller  115,  130 

V.  Jenney  564 

V.  Mason  75,  440 


Section 

Section 

271 

Davis  V.  Rainsford 

301 

488  a 

V.  Robertson 

269 

187 

V.  Salisbury 

349 

292 

V.  Shields 

268 

245 

V.  Sjjooner 

397 

568 

566 

V.  State 

164 

165 

190 

V.  Todd 

558 

V.  Wood 

99 

524 

Daws  V.  Shed 

187 

Davlin  v.  Hill 

283 

Dawkins  v.  Silverlock 

5 

253 

Dawson  v.  Coles 

173 

109 

Day  V.  Moore 

513 

156 

V.  Trigg  _ 

301 

5 

Dayrell  v.  Bridge 

510 

282  a 

Deacle  v.  Hancock 

135 

90 

Deacon's  case 

256 

488 

Deady  v.  Harrison 

180 

Dean,  &c.  of  Ely  v.  Caldecott  150 

V.  Dean  266 
Dearborn  v.  Cross                     302,  304 

Deas  i\  Darby  118  ' 

De  B  ode's  case  109 
De  Cosse  Brissac  v.  Rathbone      54Gy 

Decker,  Ex  i^arte  568  a 

Deering  v.  Sawtel  385 
De  la  Chaumette  v.  Bank  of 

England  81  a 

DelacroLx  v.  Bulkley  303 

Delafield  v.  Freeman  392 

V.  Hand  503 

Delesline  v.  Greenland  27,  184 

Dellone  v.  Rehmer  387 

Deloah  v.  Worke  610 

Delogny  v.  Reutoul  •  192 

Den  V.  Clark  556 

V.  Downam  437 

V.  Herring  145 

V.  Johnson  341 

V.  Oliver  208 

V.  Southard  145 

V.  Vreelandt    •  503 

Denn  v.  Cornell  24 

V.  Fulford  607 

V.  ]\IcAlister  84 

V.  Page  301 

I'-  Spray  139 

V.  White  185,  341 

Dennett  v.  Crocker  87 

t'.  Dow  443 

r.  Lawson  426 

Denning  v.  Roome  484 

Dennis  v.  Codrington  237 

Dennis's  case  225 

Denslow  v.  Fowler  659 

Depeau  v.  Hyams  416 

Depue  V.  Place  581 

Derby  v.  Gallup  440  a 

De  Rosnie  i\  Fah-lie  390 


XXX 


INDEX   TO    CASES   CITED. 


Section 

De  RutJTv-en  i\  Farr  150,  liji 

Df^borougli  i\  Kuwlins  242,  244 

Dcscadillas  r.  Harris  4IG 

Dt'shon  v.  JNK'rchaiits'  Ins.  Co.         4G9 

Ut'spau  V.  Swindler  C 

])e  Symonds  v.  De  la  Cbur  394 

Uevonslure  (D.  of)  v.  Lodge  293 

Dewdney  v.  Palmer  421 

Dewey  v.  Dewey  272,  572 

'  V.  Field  207 

De  Whelpdale  v.  Milburn         189,  210 

Dewhurst's  ease  228 

De  Wolf  v.  Strader  239  a 

Deybel's  case  6 

Dezell  V.  Odell  207 

Dicas  V.  Lawson  319 

Dickenson  v.  Coward  195 

V.  Dickenson  192,  384 

V.  Fitchburg  440  a 

V.  McCraw  519 

V.  Prentiss   -  399 

V.  Sliee  445,  447 

V.  Valpey  207 

Dickernian  v.  Graves     253  a,  335,  344 

Digby  V.  Stedman  116 

V.  Steele  97 

Dillon  V.  Dillon  440  a 

V.  Harris  288 

Dillon's  case  220 

Dimiek  v.  Brooks  648  a 

DI  Sora  (Duchess)  v.  Plullips        514  a 

Disraeli  v.  Jowett  484 

Ditchlnirn  v.  Goldsmith  253 

Divol  V.  Leadbetter  195,  207 

Dix  y.  Otis  281 

Dixon  u.  Cooper  115,  41() 

V.  Hammond  207 

V.  Sinclear  530 

V.  Vale  451,  451  a 

Doak  V.  AViswell  532 

Dobbs  V.  Justices  108 

Dodd  V.  Norris  54,  451 

Doddington  v.  Hudson  409 

Doddington's  case  26 

Doer.  Allen  197,291 

V.  Andrews  245 

V.  Arkwright  484,  493 

V.  Askew  484 

V.  Austin  109,  189,  207 

V.  Barnes  75,  92,  493 

V.  Bell  263 

a.  Benson  2.S0 

V.  Beviss  300 

V.  Beynon  142,  291 

V.  Biggs  197 

V.  Bingham  265,  406,  568 

V.  Bird  .              186 

V,  Brawn  8/) 

V.  Bray  104,  485 


Doe  V. 

V. 
V. 
V. 
V. 
V. 

V. 

V. 
V. 
V. 
V. 

V. 


Burdett 

Burt 

Campbell 

Caperton 

Carpenter 

Cartwright        89 

Catamore 

Chichester 

Clillbrd 

Cole 

Cooke 

Coombs 

Co}'le 

Davies 

Davis 

Deakin 

Derby 

Durnfbrd 

E.  ol'  Jersey 

Edwards 

Errington 

Flemming 

Ford 

Foster 

Freeland 

Galloway 

Gilbert 

Gord  V.  Needs 

Green 

Greenlee 

Grey 

Griffin 

Gwillim 

Harris 

Harvey 

Hathaway 

Hawkins 

Hertford 

Hilder 

Hirst 

Hodgson 

Holt  on 

HTd)l)ard 

Huddart 

Hurst 

Huthwaite 

Jack 

Jesson 

Johnson 

Joinvllle 

Jones 

Keeling 

Keley 

Kemp 

Lambly 

Langdon 

Langfield 

Lea 


Section 

570 
287 
109 
272 
272 
90,  150,  484, 
493 
564 

287,  291,  301 

560 

189 

46 

81 

94 

49,'  103,  570 

272 

41,  570 

164 

669 

287 

73 

73 

107 

284,  285 

164,  197 

286 

301 

84,  241 

290 

109 

84 

561 

41,  103 

277 

241 

87 

574 

113 

246 

5 

668 

560 

287 

291,  301 

535 

46 

288,  289,  291 

84 

41 

78,  335,  573 

288 

109,  147,  189 

142 

559 

53  a 

280 

241,  246 

109 

208 


INDEX  TO   CASES   CITED. 


XXXI 


Doe  v, 

V. 
V. 
V. 


Thy 


Lewis 

Lloyd 

Long 

Ld.  Geo 

Lyford 

Maisey 

Manifold 

Martin 

Mason 

Mew 

Michael 

Miles 

Morgan 

INIurray 

Nepean 

New'ton 

Palmer 

I'assingham 

Payne 

Pearee 

Pegge 

Pembroke  (E 

Penfold 

Perkes 

Perkins 

Pettett 

Phelps 

Phillips 

I'reece 

Piilman 

Pye 

Randall 

Reed 

Richards 

Rickarby 

Roast 

Roberts 

Robson 

Ross 

Rowe 

Rowlands 

Samples 

Seaton 

Shelton 

Sisson 

Sleenian 

Smart 

Smythe 

Somerton 

Stacy 

Staple 

Statham 

Steel 

Stephenson 

Stiles 

Suckermore 

580 
Sybourn 
Tarver 


73, 


Section 

658 

24 

7;5 

nne  1  ,')-i 

301 

389 

272 

277,  287,  2'Jl 

loO 

518 

lo4 

97 

289 

166 

41 

578,  580 

564 

144 

25,  109 

142 

207 

of)  104 

42 

273 

436,  437,  438 

109,  189 

144 

141 

406,  534 

558 

197 

103 

46 

186 

109,  189 

291 

142 

116,  147,  153 

84,  245,  560,  582 

73 

81 

21 

241,  484 

23 

52,  130 

136 

75 

207 

561,  562 

154 

46 

23 

210 

469 

570 

577,  579, 


576. 


46,  212,  551 
578 


Section 

Doew.  Taylor  291 

d.  Taylor  v.  Roe  145 

V.  Thomas  145,  246 

V.  Tooth  y:;;j,  391 

V.  TuWord           40,  115,  116,  120, 

147 

V.  Tyler  151,  386,  390 

V.  Vowels  116,  151 

V.  Wain-ttTight  IKO 

V.  Watson  ;)7 

V.  Webl)er  109,  110 

V.  Wheeler  286 

v.  Whitcomb  115,  151,  154 

V.  Wilde  406 

1-.  Wilkins  571 

V.  Williams  147,  392,  406 

V.  Wolley  21,  570 

V.  Wonibwell  197 

V.  Young  92 

Doherty  v.  Clark  28 

Doker  v.  llasler  254,  337 

Dolby  V.  lies  211 

Dolder  V.  Ld.  Huntingfield  6 

Dole  V.  Allen  86 

Donaldson  v.  Jiide  510 

V.  Winter  509 

Doncaster  v.  Day  163 

Donelson  v.  Taylor  421 

Donn  V.  Lipjmian  546 

Donnel  v.  Jones  435 

Donnelly  v.  State  445 

Donnohoo  i'.  Brannon  506 

Doolittle  V.  Holton  40 

Doorman  v.  Jenkins  108 

Dorlon  v.  Douglass  251 

Dome  V.  Southwork  Man.  Co.  114 

Dorr  0.  Fenno  69 

V.  Muusell  284 

Dorset  (D.  of)  v.  Ld.  Ilawarden     292 

Dorsey  v.  Dorsey  189,  545 

Doty  «.  Wilson  '  421,429 

Douglas  V.  Hart  118 

V.  Saunderson  104,  349,  575 

Douglass  c.  Rrancli  Bank  5 


p.  Mitchell 
V.  Reynolds 
V.  Spears 
V.  Tousey 
Dover  v.  Marston 
Dow  V.  Sawyer 
DoAvden  r.  Fowle 
Do^vner  v.  Rowell 
Downs  L\  Cooper 
Dows  V.  McMichacl 
DoArton  i\  Cross 
Drake  r.  Ilenlev 
r.  jNIerriil 
r.  Mitchell 
V.  Mooney 


44 
288 
268 
54,  55,  461 
378 
116 
180 
436 

25 
531 
181 
385 
532 
533 

40 


XXXll 


INDEX  TO    CASES   CITED. 


Piaii^zuot  V.  ProucTliomme 
Draper  v.  Garratt 

V.  Sykes 
Dra^ion  v.  Dale 

V.  Wolls 
J)ri'nneu  i\  Liudsey 
Drew's  case 
Drew  V.  "Wood 
Drinkwater  v.  Porter 
Drouet  v.  lliee 
Drown  v.  Smith 
Dro^v^le  v.  Stiippson 
Drummoiid  v.  Attorney-General 

V.  Ma ji ruder 

V.  Prestiuan 
Druininond's  case 
Dnnnright  v.  Pliilpot 
Du  Barre  v.  Livette 
Du  Bost  V.  Bereslbrd 
Duchess  of  Kino-stou's  case 


Section 

74 

60 
180 
207 
163 
4(52 
219 
450 
140 
20 
207 
349 
280 
60(3 
187 
156 
112 
239,  247 
100,  101 
248,  43G, 
523 
320 
118 
484 
572 
390 
ISO 
240,  241,  245 
301 
427 
672,  575 
128 


Ducket  V.  Williams 
Ducoigne  v.  Schreppel 
Dudley  v.  Graj'-son 
V.  Summer 
Duel  V.  Fisher 
Duffield  V.  Scott 
Duffin  V.  Smith 
Dugan  V.  Seekright 
Duke  V.  Pownall 
Dunbar  v.  Mardeu 

V.  Mulry 
Duncan  v.  Beard 
V.  Hodges 
v.  Mickleham 
Dundas  v.  Ld.  AVeymouth 
Dunham's  A])peal 
Dunham  v.  Branch 

V.  lliley 
Dnnlap  i'.  Waldo 
Dunn  V.  Aslett 
V.  Murray 
V.  Paokwood 
V.  Snell 
V.  Snowdon 
V.  The  State 
V.  Whitney 
Dunning  v.  Roberts 
Dunraven  i\  Llewellyn 
Dupuy  V.  Truman 
Durell  V.  Bederley 
Durham  (Bp.  of)  v.  Beaumont 
Durkee  v.  Leland 

V.  Vermont  Central  Rail- 
road 
Durore's  case 
Durston  v.  Tutham 
Dutton  V.  Gerrish 


142 

568  a 

389 

69 

440 

426 

559 

50(5 

444,  407 

532 

386 

190 

41 

168 

118 

2(;9 

145 

93,  437 

441 

409 
239  a 


84 

05 

60 

281 


V.  Woodman  112,177,407,532 


Section 

Duval  V.  Bibb  26 

Dwight  V.  Linton  288,  322 

Dwinel  v.  Pottle  117 

Dwinell  v.  Larrabee  561 

Dwyer  v.  Collins  245 

Dyer  v.  Ashton  205 

V.  INIorris  432 

V.  Smith  488 

V.  Tymell  348 

Dyke  v.  Aldridge  180 

Dykers  v.  To^\msend  208 

Dyson  v.  Wood  513 


E. 


Eagleton  v.  Gutteridge  568 

Eames  v.  Eames  42 

Earle  v.  Baxter  20 

V.  Lewis  142 

V.  Picken  45,  200,  203 

V.  Sawyer  118 

Easby  tJ.  Aiken  118 

Eason  v.  Chapman  461 

East  V.  Chapman  451 

East  India  Co.  v.  Campbell  451 

V.  Evans  349 

V.  Gossing  416 

Eastman  v.  Bennett  108  a 

V.  Cooper  532 

V.  Martin  105 

V.  Tuttle  207 

V.  Winship  167,  418 

Edge  V.  Pemljertou  52 

Edgell  V.  Bennett  254 

Edgerly  v.  Emerson  279,  305 

Edgerton  v.  Wolf  176 

Edie  V.  East  India  Co.  5 

Edmiston  v.  Schwartz  506 

Edmonds  v.  Lowe  391,  401,  416 

V.  Rowe  371 

V.  Walter  435 

Edward  Altham's  case  301 

Edwards  v.  Crock  102 

V.  Matthews  76 

V.  Weeks  302 

Egg  I'.  Barnet  38 

Errgleston  V.  Speke  179 

Eieke  V.  Nokes  241,  245 

Eld  V.  Gorham  480 

Elden  v.  Keddell  519 

Ehler  y.  Warlield  118 

Elderton's  case  6 

Eldridge  v.  Knott  20,  45 

Eldridge's  case  217 

EUe  V.  Gadsden  286 

Elkin  V.  Janson  80 

Elkins  V.  Hamilton  108 

EUieott  V.  Pearl  137,  146 


INDEX  TO   C 

Section   i 

VSES  CITED. 

XXX  111 

Section 

Elliott  V.  Evans 

6 

Evans  v.  Hettick 

365, 

389 

V.  Heath 

164 

V.  King 

69 

V.  Piei-sol 

103,  104, 

132 

V.  Morgan 

1117 

V.  Porter 

53o 

V.  Rees                     139, 

313 

319 

V.  Smith 

207 

V.  Roberts                    ' 

271 

Ellis  V.  Ellis 

86 

V.  Smith 

341 

V.  I'ark 

5 

V.  Tarleton 

548 

V.  Saltan 

249 

V.  Yeathcrd 

395 

V.  Smith 

323 

Everett  v.  Lowdlian 

432 

V.  Thompson 

292 

Everingliam  v.  Roundell 

84 

V.  Watson 

210 

Ewer  V.  Ambrose 

442 

443 

V.  Willard 

305 

Evvins  V.  Gold 

392 

Ellison  V.  Cookson 

296 

Exchange  Co.  v.  Boyce " 

498 

EUmaker  v.  Bulkley 

445 

447 

Ex  parie  Kip 

175 

Elsara  V.  Faucett 

54 

102 

Elston  V.  Wood 

179 

Elting  V.  Seott 

212 

F. 

lOlton  V.  Larkins 

186 

449 

Elwood  V.  Deifendorf 

189 

420 

Fabens  v.  Tirrell 

81  a 

Ely  V.  Ely 

564 

Fabyan  v.  Adams 

322 

Emerson  v.  Blonden 

185 

Faeey  v.  Hurdon    , 

49 

V.  Brigham 

398 

Fairchild  v.  Dennison 

118 

V.  Fisk 

562 

Faircloth  v.  Jordan 

560 

V.  Lowell  Gas  Light  Co.  440  a 

V.  Murray  564 

'  V.  Providence  420 

V.  Tolman  570 

V.  White  103 

Emerton  v.  Andrews  396 

Emery  v.  Beriy  489 

V.  Fowler  165,  523 

V.  Grocock  46 

V.  Twombly  472 

Emmerson  f>.  Heelis  269,  271 

Emmett  v.  Butler  356,  358 

Emmons  v.  Hayward  75 

V.  Littletield  26 

V.  Oldham  20 

Empson  v.  GritHn  73 

England  v.  Slade  25 

Engles  V.  Bruington  572 

English  V.  Sprague  513 

Ennis  v.  Smith  514,  525 

Enos  V.  Tuttle  108 

Ensign  v.  Webster  212 

Enterprise  (The)  113 

Ephraims  v.  Murdoch  164,  165 

Ereskine  v.  Murray  5 

Ernest  v.  Brown  73 

Erskine  v.  Boyd  322 

V.  Plummer  271 

Estill  V.  Taul  530,  531 

Estrella  (The)  ^4 

Eustis  V.  Parker  175 

Evans  v.  Birch  80 

V.  Eaton  389,  421,  423,  552 

V.  Getting  497 

V.  Gibbs  354 

V.  Gray  423 


Fairfield  Turn.  Co.  v.  Thorp  332 

Fairlie  v.  Denton  198,  199 

V.  Hastings  113,  114 

Fairmaner  v.  Budd  212 

Fail-title  v.  Gilbert  24 

Falkner  &  Bond's  case  217 

V.  Earle  293 

Falls  V.  Belknap  175,  331 

Falmouth  (E.  of)  v.  Bobbins  564 

(Ld.)  V.  George  40o 

V.  Moss  248 

V.  Thomas  271 

Faner  v.  Turner  108 

Farley  v.  King  552 

Farmers'  Bank  v.  Whitehill  115,  116, 

147 

&  Mech.  Bank  v.  Boraef  437 

V.  Dav       299 

V.  Ward    489 

Farnsworth  v.  Briggs  518,  519 

Farr  v.  Swan  485 

Farrant  v.  Spencer  288 

Farrar  v.  Farrar  265 

V.  INIerrill  46 

V.  Stackpole  286,  293 

V.  Warlield  440 

Farrow  v.  Bloomfield  463 

Farwell  v.  Hillard  539 

Fassett  v.  Brown  572 

Faucort  v.  Bull               ■  396 

Faunce  v.  Gray  1  '6 

Faxon  r.  Hollis  117,  118 

Fay  V.  Prentice  ^ 

Fazakerly  v.  AViltshire  6 

Feemster  v.  Ringo  ^ 

Fellows  V.  AViUiamson  108 


XXXIV 


INDEX   TO    CASES   CITED. 


Section   , 

Section 

Felter  v.  ]\Iiilliner 

510 

Flinn  V.  M'Gonigle 

558 

Fenn  v.  Granger       o30,  353, 

354, 

452 

Flint  V.  Allyn 

356 

Fenner  v.  Lewis 

187 

Flourenoy  v.  Durke 

548 

Fenno  v.  Weston 

199 

Flower  v.  Herbert 

204, 

207 

Fenwick  v.  Bell 

440 

Floyd  V.  Bovard 

445 

V.  Read 

154 

V.  Ricks 

5 

V.  Reed 

239 

Fogg  V.  Child 

114 

V.  Thornton 

179 

V.  Dennis 

581 

Fenwick's  case 

251 

Folkcs  V.  Chadd 

440 

Ferguson  v.  Harwood     56,  68 

,  60 

506 

FoUain  c.  Lefevre 

6 

I'.  Malion 

546 

Folsom  /;. 'Manchester 

2 

52  a 

Fernandez,  ex  parte 

451 

V.  Mussey 

304 

Fernandis  &  Hall  v.  Henderson 

369 

Fonnereau  v.  Foyntz 

288 

Ferrer's  case 

19 

Foot  V.  Glover 

532 

Ferrers  v.  Arden 

533 

V.  Tracy 

55 

V.  Slairley 

577 

Foote  V.  Cobb 

572 

Fetherly  v.  Waggoner 

570 

i;.  Hayne 

239 

Fiedler  v.  Smith 

66 

Forl)es  v.  Wale            21,  144, 

349, 

570 

Field  V.  Holland 

178 

Ford  V.  Ford 

461 

V.  JVlitchell 

394 

V.  Gray 

23 

V.  Snell 

428 

Forrest  v.  Shores 

26 

V.  Winslow 

69 

Forrester  v.  Pigou    167,  392, 

395, 

418 

Fife  V.  Commonwealth 

219 

Forshaw  v.  Lewis            239  a. 

241, 

559 

Fifield  V.  Smith 

422 

Forster  v.  Hale 

266 

Filnier  v.  Gott 

284 

Forsyth  v.  Ganson 

176 

Finch  V.  Bp.  of  Ely 

474 

Forsythe  t\  Norcross 

' 

117 

Finn's  case 

163 

Foi't  v;.  Clarke 

104, 

204 

Firkin  v.  Edwards 

562 

Fortescue  &  Croak's  case 

349 

Fischer  v.  Morse 

829 

Foss  V.  Haynes 

456 

Fish  V.  Hubbard 

300 

Foster  v.  Alanson 

303 

V.  Skut 

34 

V.  Beals 

212 

V.  Travers 

75,  76, 

V.  E.  of  Derby 

536 

Fisher  v.  Bartlett 

207 

V.  Hall                    237, 

240 

241 

V.  Dane 

18 

V.  Jolly 

281 

304 

V.  Kitchingman 

510 

V.  Mackay 

558 

i'.  True 

190 

V.  Pierce 

451 

V.  Tucker 

112 

V.  Pointer 

562 

V.  Willard 

421 

V.  Shaw 

165 

539 

Fiske  V.  Ronald 

451 

V.  Sinklcr 

118 

Fitch  V.  Bogue 

349 

,  558 

V.  Trull 

521 

V.  Hill 

342 

Foster's  case 

65 

V.  Smallbrook 

375 

Fotheringham  v.  Greenwood 

387 

395 

Fitchburg  Bank  v.  Greenwood 

288 

Foulkes  V.  Selway 

64 

101 

Fitler  v.  Shotwell 

485 

,  493 

Fonts  V.  State 

220 

Fitzgerald  v.  Elsee 

572 

Fountain  v.  Coke 

347 

V.  Fauconberg 

564 

V.  Young 

241 

Fitzhugh  V.  AViuuin 

305 

Fowler  v.  Coster 

75,  76 

Fitzwalter  Peerage 

580 

V.  Etna  Ins.  Co. 

64 

Flagg  V.  Mann 

421 

V.  Merrill 

323 

V.  Mason 

109 

V.  Savage 

539 

Flanders  v.  Davis 

38  « 

Fox  V.  Adams 

347 

Fleming  v.  (xilbert 

302 

,  304 

V.  Clifton 

207 

V.  (iooding 

207 

V.  Jones 

472 

Fletcher  v.  Eraddyl 

40 

V.  Keil 

569 

V.  Froggatt 

201 

V.  Whitney 

385 

V.  Willard 

305  a 

V.  Widgery 

25 

Flight,  ex  parte 

285 

Foxeroft  v.  Kevens 

187 

,  356 

Flindt  V.  Atkins 

514 

France  v.  Lucy 

562 

Flinu  V.  Calow 

281 

Franchot  v.  Leach 

284 

INDEX   TO   CASES   CITED. 


XXXV 


Section 

Francla's  case  217,  '2o^) 

I'rankliu  Jkiiik  v.  Freeman  416 

Fraser  t'.  Harding  4;J0 

V.  Hopkins  494 

V.  Marsh  179,  427 

Frayes  v.  Worms  546  g 

Frazier  v.  Laughlin  356 

Frear  v.  Evertsou     172,  329,  347,  353 

V.  Hardenbergh  271 

Free  v.  Hawkins  281 

Freeholders,  &c.  v.  State  20 

Freeland  v.  Keren  197 

Freeman  v.  Arkell  2o2 

V.  Brittin  385 

V.  Lucket  387 

V.  Morey  40 

V.  Phillips  132,  135,  139 

V.  Thayer  20 

V.  Walker  210 

French  v.  French  550 

V.  White  53 

Friedlander  r.  London  Assur.  Co.  443 

Frith  V.  Barker  280 

Frontine  v.  Frost  80 

Frost  V.  Everett  304 

V.  Holloway  459 

V.  Shapleigh  521 

«  V.  Spaulding  301 

Frye».  Barker  118,174 

V.  Gragg  164 

Fuller  V.  Crittenden  212,  305 

V.  Hampton  175,  192 

V.  Rhe  322 

V.  Whcelock  417 

Fulton  V.  Hood  440 

Fulton  Bank  i\  Stafford  447 

Furber  v.  Ililliard  362 

Furbush  v.  Goodwin  305,  469  a 

Furly  V.  Newham  312,  320 

Furman  v.  Ray  118 

Furneaux  v.  Hutcliins  52 

Furneanx's  case.  65 

Fursden  v.  Clogg  113,  149,  152 

Fyler  o.  Givens  268 

Fyson  v.  Kemp  508 


G. 

Gabay  v.  Lloyd 
Gainsford  v.  Grammar 
Galbraith  v.  Galbraith 
Gale  V.  Lincoln 
V.  Nixon 


292 

245 

423 

197  a 

268 


Galena,  &c.  R.R.  Co.  v.  Fay   108,  462 
Gaudolfb  v.  State  oo 

Garden  v.  Creswell  319 

Gardere  v.  Columbian  Lis.  Co.         514 
Gardiner  v.  Croasdale  61 


Section 

Gardiner  r.  McMahon  113 

(Gardner  v.  Way  118 

Garey  v.  Nicholson  201 

Garlock  v.  Geortner  38 

Garnett  v.  Ball  184 

Garrels  v.  Alexander  577 

Garrett  v.  Stewart  26 

Garrott  v.  .Johnson  165,  532 

Garth  V.  Howard  113 

Garwood  v.  Dennis  24 

Gass  (5.  Gass  175 

V.  Stinson  421,  445,  461,  554 

Gathercole  v.  Miall  558 

Gaul  V.  Fleming  76 

Gay  V.  Bowen  112 

Geach  v.  Ingall  73,  76 

Gebhardt  v.  Shindle  430 

V.  Skinner  365 

Geery  v.  Hopkins  .474 

Gelston  V.  Hoyt  541,  543 

Gening  v.  The  State  79 

George  v.  Joy  305  a,  436 

V.  Kimball  409 

V.  Pierce  167 

V.  Sargent  356 

V.  Stubbs  423 

V.  Surrey  577 

V.  Thompson  562 

Gerding  v.  Walter  38 

Gerrish  v.  Cummings  356,  357 

V.  Sweetser  192 

V.  Towne  287 

Getchell  v.  Heald  1 7-4 

Geter  «.  Martin  119 

Gevers  v.  Mainwaring  394,  417 

Geyer  v.  Irw'm  316 

Gibblehouse  v.  Strong  109,  190 

Gibbon  V.  Coggan  97 

V.  Featherstonhaugh  38 

Gibbon's  case  484,  493 

Gibbons  v.  Powell  562 

Gibbs  V.  Bryant  358,  427 

Gibney's  case  229 

Gibson  v.  Hunter  53 

V.  Jeys  80 

V.  McCarty  362 

V.  Peebles  121 

V.  Stevens  6 

V.  Watei-house  78 

V.  Winter  et  al.  173 

Gilbert  v.  Bulkley  265 

V.  Manchester  430 

V.  Thompson  532 

Gilchrist  v.  Bale  102,  341 

Gilderslceve  v.  Caraway  165 

V.  Mahoney  201 

Giles  V.  O'Toole  440 

Gillard  V.  Bates  244 

Gilleland  v.  Martin  41 


XXXVl 


INDEX   TO    CASES   CITED. 


Section 

Section 

Gillet  V.  Sweat 

664 

Gorton  V.  Hadsell 

49 

(iilliam  v.  State 

461 

Gosling  V.  Birnie 

207 

Gillies  V.  Siuitlier 

84 

Goss  V.  Ld.  Nugent 

302 

Gilli^lian  v.  Tebl)etts 

112 

V.  Tracy 

168,  572 

Gillilan.l  r.  Sellers 

6 

V.  Whatlington        116, 

147,  149, 

Ciilinore  v.  Bowileu 

348 

187 

Gihnu  V.  Vineent 

333 

388 

Gough  V.  Cecil 

675 

Givens  v.  Bradley 

65 

V.  Gough 

67 

V.  Filer 

2G8 

V.  St.  John 

64 

Glascock  V.  Hayes 

532 

Gould  V.  Barnes 

69 

Gleadow  v.  Atkin    115,  116, 

122, 

149, 

V.  Crawford 

165 

153 

V.  James 

331 

Gleason  v.  ]McVicar 

60 

V.  Jones 

578 

Glen  V.  Grover 

260 

V.  ISIcCarty 

560 

Glenn  v.  Rogers 

562 

V.  Norfolk  Lead  Co. 

277,  416, 

Glossup  V.  Pole 

556 

4G2 

Glubb  V.  Edwards 

572 

V.  Oliver 

205 

Glynn  v.  Bank  of  England 

117 

121 

Goulding  V.  Clark 

540 

Goblet  V.  Beechy 

288 

Governor  v.  Bell 

498 

Goddard  v.  Gardner 

239  a 

V.  Daily 

426 

V.  Ingram 

112 

V.  Gee 

420 

Goddard's  case 

24 

V.  JelFreys 

498 

Godefroy  i".  Jay 

508 

V.  McAli'ee 

498 

Godfrey  v.  Norris 

672 

Gower  v.  Emery 

245 

(ioldie  c.  Gunston 

207 

Gi 

afton  Bank  v.  Moore 

177 

i\  Sliuttleworth 

186 

Gragg  V.  Frve 

66 

Goldshede  v.  Swan 

285 

Gi 

aham  v.  Whitcly 

540 

Goldsmith  v.  Bane 

581 

Granger  v.  Warrington 

'237 

V.  Picard 

64 

Grant  v.  Jackson               177 

,  204,  210 

Goldstone  v.  Davidson 

513 

V.  Maddox 

•292 

Goltra  V.  Woleott 

253  a 

V.  McLachlin 

541 

(iooch  V.  Bryant 

664 

V.  llidley 

320 

Goodacre  v.  Breame 

395 

V.  Thompson 

440 

Goodell  V.  Smith 

96 

281 

Grantham  v.  Canaan 

39 

(roodfellow  (;.  Inslee 

566 

Graves  v.  Jo  ice 

535 

(ioodhay  v.  Hendry   "Do,  392, 

422 

426 

V.  Key 

207,  212 

Goodhue  V.  Bartlett 

323 

Gray  v.  Davis 

501 

(ioodier  v.  Lake 

558 

V.  Gardnier 

46 

Goodinge  v.  Goodinge 

288 

V.  Goodrich 

108 

(ioodman  v.  Harvey 

81a 

V.  Harper 

280,  296 

V.  James 

506 

V.  Palmer 

174,  177 

Goodrich  v.  Longley 

281 

286 

V.  Pentland 

261 

Goodright  v.  Hicks 

65 

V.  Pmgry_ 

631  a 

V.  Moss    103,  134 

253 

344 

Gi 

•ayson  v.  Atkinson 

272 

V.  Saul 

106 

G 

•eat  Falls  Co.  v.  Worcester           145 

V.  Strai)han 

668  a 

Gi 

•eat  Northern  K.R.  Co.  v. 

Ilar- 

Goodtitle  I'.  Baldwin 

45 

rison 

287 

V.  Brahaiu 

76 

434 

Gi 

•eaves  v.  Hunter 

681 

V.  Clayton 

443 

G 

•eely  v.  Smith 

632 

V.  Southern 

301 

G 

•een  v.  Brown 

41 

V.  Welford         347 

419 

429 

V.  Caulk 

436 

Goodwin  V.  Appleton 

6 

V.  Chelsea 

570 

V.  Hul)lnird 

266 

V.  Howard 

288 

V.  West 

311 

V.  Jones 

392 

Goodwright  v.  Downshire 

288 

V.  New  River  Co. 

394,  627 

Gore  V.  Elwell 

509 

V.  Pratt 

118 

Gorham  v.  Canton 

108 

V.  Proude 

609 

V.  Carroll 

385 

,  452 

V.  Rngely 

488  a 

Gorton  v.  Dvson 

518 

V.  Salmon 

392 

Green  v.  Sutton 
V.  Waller 
Greene  v.  Clarke 
V.  Durfee 
Greenleaf  «.  Qnincy 
Greeuough  v.  Eocles 
V.  Gaskell 


237, 


V.  West 
Gregory  i\  Baugh 

V.  Dodge 

V.  Howard 

V.  Parker 

V.  Tavernor 

V.  Thomas 
Grellier  v.  Neale 
GrenffU  v.  Girdleston 
Greville  v.  Chapman 
Grey  v.  Young 
Grierson  t\  Eyre 
Griffin  v.  Brown  342, 

V.  Montgomery 
Griffin's  case 
Griffing  V.  Harris 
Griffitli  V.  Davies 

r.  Williams 
Griffiths  V.  Williams 
Griffits  I'.  Ivery 
Grigg's  case 
Grimes  v.  Kimball 
Grimwood  v.  Barrett 
Griswold  V.  Pitcairn 
Grote  V.  Grote 
Guernsey  v.  Carver 
Guidon  V.  Robson 
Guild  V.  Lee 

Guihl's  case       217,  219,  221, 
Guinness  r.  Carroll 
Gully  V.  Grubbs 
Gunnison  v.  Gunnison 
Gunter  v.  Watson 
Gurney  v.  Langlands 
Gurr  V.  llutton 
Gutteridge  v.  Smith 
Guy  V.  Hall 

V.  Sharp 
Gwinnett  v.  Phillips 
Gyles  V.  Hill 

H. 

Habershon  ii.  Troby 

Hacker  v.  Young 

Hacket  v.  Callender      197  a, 

V.  ^lartin 
Hackett  v.  King 
Hackley  v.  Patrick 
Hackman  v.  Fernie 
Haddow  V.  Parry 

VOL.    I. 


DEX  TO   C 

ASES   CITED. 

XXXVll 

Section 

Section 

3bG 

Haddrick  v.  Rainc 

49 

5 

Hadduck  v.  Wilmarth 

385 

532 

Hadjo  V.  Gooden 

469 

428 

Hadley  v.  Carter 

108 

112 

V.  Green 

532 

444 

Hadri(;k  v.  Heslop 

357 

239,  242, 

Haffelfinger  v.  Shutz 

564 

244 

Hagaman  v.  Case 

118 

3»5 

Hagedoorn  v.  AUnutt 

310 

103 

Hagedurn  i\  Rcid 

116 

420 

Haig  V.  Newton 

437 

192 

Haigh  V.  Belcher 

52,  449 

185 

V.  Brooks 

485 

466 

Haile  v.  Palmer 

485,  493 

55 

Haines  v.  Dennett 

385 

572 

Haire  v.  Wilson 

18 

39 

Hale  V.  Ross 

489 

440 

V.  Russ 

567,  568 

102,  430 

V.  Smith 

398 

4 

Hale's  Ex'rs  v.  Ard's  Ex'rs 

117 

,  395,  539 

Haley  v.  Godfrey 

427 

114  a 

Halifax's  case 

40 

220 

Hall  V.  Ball 

84 

385 

V.  Baylies 

392 

245 

V.  Cazenove 

285 

578 

V.  Cecil 

395,  401 

27,  186 

V.  Fisher 

301 

580 

V.  Gettings 

145 

339,  340 

V.  Glidden 

117 

558 

V.  Hale 

391 

60 

V.  Hill 

185 

4 

V.  Hoddesdon 

552 

47 

V.  Houghton 

443 

532 

V.  Manchester 

509 

207 

V.  Odber 

546 

179,  537 

V.  Phelps 

569 

,  222,  223 

V.  Steamboat  Co. 

426 

546 

V.  Wiiitc 

208 

26 

V.  Williams 

502,  548 

310 

Hallet  V.  Mears 

310 

435 

Hallett  V.  Cousens 

463 

580 

Halliday  v.  Martinett 

116 

101 

Haly  V.  Lane 

207 

205 

Ham  V.  Ham 

6,25 

385 

Hamblin's  Succession 

550 

287,  291 

Hamer  v.  Sowerby 

559 

60,  66 

Hauultou  V.  Cutts 

180,  394 

508 

V.  Marsden 

572,  575 

V.  Minor 

.  145 

V.  Williams 

167,  572 

.  Hammatt  v.  Emerson 

113 

249 

Ilammick  v.  Bronsou 

107 

484 

Hannnon  v.  Huntley 

176 

I,  199,  207 

Hammond  v.  Steward 

314 

190 

Hammond's  case                 57 

3,  580,  581 

108 

Hampshire  v.  Pierce 

291 

112 

Hampton  v.  McConnell 

504 

73,  76 

Hanbury  v.  Ella 

73 

116,  147 

Hancock  v.  Bai'rett 
d 

548 

XXXVlll 

INI 

)EX  TO   ( 

Section 

Hancock  v.  Welsh 

631 

Haiidlcy  v.  Edwards 

402 

Haiiiialord  r.  Hunn 

532 

Hauuay  r.  Stewart 

113 

Hoiiover  (K.  of)  i\  Whc 

atley 

4G7,  554 

Hansard  r.  Robinson 

558 

Hanson  c.  Eustace 

37 

V.  Parker 

180 

V.  Sliacklcton 

5 

r.  Stetson 

2S1 

Hard  v.  Brown 

101 

Harden  r.  Gordon 

212 

Harding  c.  Carter 

208 

V.  Greening 

36 

V.  Hale 

632 

V.  Mott 

385 

Hai-dnian  v.  Wilcock 

207 

]  lardy  v.  The  State 

49 

Hare  v.  Mmm 

76 

Harder  v.  Edmonds 

440 

Ilargrave  v.  Hargrave 

103,  166 

Harnian  v.  Lesbrey 

391,  401 

Harnum's  case 

225 

Harmer  v.  Davis 

207 

Ilariaon  v.  Arthur 

427 

Harness  v.  Tlionipson 

356 

Harnett  v.  .lohnson 

81 

Harper  v.  Burrow 

164 

V.  Gilbert 

477 

Harrington  v.  Fry 

677 

V.  Lincoln 

192, 

449,  469 

Harris  v.  Fornian 

284  a 

v.  Harris 

215 

V.  Holmes 

51  a 

V.  Johnston 

305  a 

V.  Mantle 

52 

V.  Rayner 

58 

V.  liickett 

285 

V.  Tippett        52 

423, 

449,  459 

V.  Y\'liitcomb 

86 

V.  Wilson       177 

423, 

425,  449 

Harris's  case 

227 

Harrisburg  Bank  v.  Foster 

385 

Harrison  v.  Barnby 

61 

V.  Barton 

282  a 

V.  Blades 

147,  572 

V.  Courtanld 

421 

V.  Creswick 

528 

V.  (lordon 

449 

V.  Middleton 

437 

V.  Moore  . 

96 

V.  I  If)  wan 

434, 

445,  447 

V.  Vallance 

180,  190 

Harrison's  case 

79 

Hart  V.  Deamer 

556 

V.  Newman 

196,  209 

V.  Williams 

116 

V.  Yunt 

84 

Hart's  case 

408 

Section 

Hartford  Bank  v.  Hart  332 

Bridge  Co.  v.  Granger      192 

V.  Palmer  365 

Hartley  v.  Brooks  117 

V.  ^lanson  668  a 

V.  Wilkinson  283 

Haitness  v.  Thompson  197  a 

Hartwell  v.  Root  40,  80 

Harvey  v.  Alexander  26 

V.  Broad  6 

V.  Cotlln  392 

V.  (iral)ham  302 

V.  jNIitchell  560 

V.  Richards  528 

V.  Thomas  84 

V.  Thoi'pe  86 

V.  Towers  78 

Harvey's  case  231 

Harwood  v.  Goodright  37 

V.  Keys  180 

V.  Mulry  118 

V.  Sims  135,  138 

Hasbrouck  v.  Baker  96  a 

V.  Yandervort  335 

Haskill  V.  The  Commonwealth  79 

Hastings  v.  Blue  Hill  Turnpike 

Corporation  484 

Hatch  V.  Dennis  190 

V.  Hatch  568 

Hatfield  v.  Jameson  5 

V.  Thorp  841 

Hathaway  v.  Clark  20 

V.  Haskell  176 

Hathorn  v.  King  440 

Hatton  V.  Robinson  238 

Hauberger  r.  Root  176 

Haughey  v.  Strickler  51  a 

Haven  v.  Brown  113,  437 

Havis  V.  Barkley  387 

Hawes  v.  Hatch  568 

V.  Watson  207 

Hawk  V.  Freund  201 

Hawkesworth  v.  Showier  357,  407 

Hawkins  v.  Brown  322 

V.  Finlayson  394 

V.  Grimes  581 

V.  Howard  246 

V.  Lascomb  179 

V.  "Ware  89 

Hawks  V.  Baker  371 

V.  Kennebec  6 

Haworth  v.  Bostock  39 

Haworth's  case  225 

Hayden  v.  Denslow  266 

V.  Inhab.'ts  of  Madison        197 

Haydon's  case  293 

Hayes  v.  Morse  122 

I'.  Seaver  187 

Hayne  v.  Maltby  25 


INDEX  TO    CASES   CITED. 


XXXIX 


HajTies  V.  Rowe 
V.  Rutter 
V.  Yoiinij 
Hays  V.  Ricliardsoii 
Ilayslc])  V.  GyiiKT 
Havward  r.  IJatli 


Section 

108 
301 
422 
199 
498 
Rubber  Co.  v.  Duncklee  189 
Hazard  v.  Loring  305  a 

V.  N.Y.  &  Providence 

R.R.  4G2 

Hazeldine  v.  Grove  49 

Hazen  v.  Boston  &  Maine  R.R.        80, 

285 

Head  v.  McDonald  539 

V.  Shaver  172 

Heald  v.  Tiling  440 

Healey  v.  Thatcher  192 

Heane  v.  Rogers  204,  207 

Heard  v.  Wadham  303 

Hearn  v.  Toniliu  "25 

Heath  V.  Hall  408 

Heaton  v.  Findlay  242 

Heckert  v.  Fegely  358 

V.  Haiue  569 

Hedge  v.  Clapp  462 

Heely  v.  Barnes  421 

Heermance  v.  Venioy  398 

Helmsley  v.  Loader  196 

Hemenway  v.  Smith  239  a 

Hemmenway  v.  Towner  28 

Hemming  v.  English  429 

V.  Parry  73 

Hempstead  v.  Reed  488,  489 

Henderson  v.  Anderson  385 

V.  Henderson  546 

V.  Kenner  532 

V.  Wild  172,  174 

Hendrickson  v.  The  People  225 

Henti-ey  v.  Brondey  560 

Henkin  v.  Gerss  253 

Henman  v.  Dickinson  342,  564 

V.  Lester  96  a,  449 

Hennell  v.  Lyon  507,  512 

Henry  v.  Adey  514 

V.  Bishoj)  569 

V.  Brown  69 

V.  Cleland  69 

V.  Lee  484,  560 

V.  Leigh  496,  560 

V.  Risk  280 

Henshaw  v.  Davis  118 

Henthorne  i\  Doe  21 

Hoplnirn  v.  Auld  46 

Herbert  v.  Ashburner  473 

V.  Tuckall  116 

Hercules,  The  495 

Herman  v.  Drink  water  348 

Herrick  v.  INLxlin  564 

V.  Noble  281 


Section 

Herring  v.  "Boston  Iron  Co,  288 

V.  Clobery  240 

V.  Levy  115,  117 

Herschfield  v.  Clarke  559 

Hervev  o.  Hervey  107 

Heward  v.  Shipley  384,  413 

Hewett  c.  Piggott  198 

Hewitt  V.  Prime  248 

Hewlett  V.  Cock  142,  144 

Heylings  v.  Hastings  112 
He V wood  V.  Reed              101,  190,  469 

Hibbert  v.  Knight  241 
Hibblewhite  v.  McMorine      568,  568  a 

Hibsham  v.  DuUeban  550 

Hicks  V.  Person  581 

Higdon  V.  Thomas  26 

Higgins  V.  Dellinger  197  a 

Higgs  V.  Dixon  569 
Higham  v.  Ridgway         116,  147,  149, 

150,  151 

Higlifield  V.  Peake  507,  516 

Highland  Tump.  Co.  v.  McKean     493 

Higlev  V.  Bidwell  145 

Hildreth  v.  Marlin  199 

Hill  V.  Barge  272 

V.  Buckminster  304 

V.  Crosby  17 

V.  Great  Western  Railway        559 

V.  Manchester  &  Salfoi'd 

Waterworks  26 

V.  Packard  488,  508 

Hill's  case  65 

Hilliard  v.  Jennings  392 

Hills  V.  Barnes  564 

V.  London  Gas  Co.  288  b 

Hilt  V.  Campbell  oS,  66 

Hilts  V.  Colvin  84,  375 

Hinde  v.  Vattier  21,  490 

Hinkle  V.  Wanzer  260 

Hinman  v.  Brees  521 

Hinman's  case  227 

Hipes  V.  Cochran  6  a 

Hiscocks  V.  Hiscocks  289,  291 

Hitchcock  V.  Tyson  205 

Hix  V.  Whittemore  42 

Hizer  v.  State  6 

Hoare  v.  Croyton  150,  181 

V.  Graham  281 

V.  Silverlock  5 

Hobart  v.  Bartlett  422 

Hobbs  V.  Lowell  207 

V.  Parker  528 

Hocking  v.  Cooke  5,  280 

Hockless  V.  MitcheU  427 

Hockley  r.  Lamb  405 

Hodempyl  v.  Vingerhoed  112 

Hodgdon  v.  Wight  38 

Hodge's  case  34 

Hodges  V.  Holdeu  75,  76 


xl 


INDEX   TO    CASES   CITED. 


Section 

Section 

IIo(l;;es  V.  Horsfall 

288 

Hopkins  v.  Mogquire 

577 

liudgkiiison  v.  FU'tdier 

185 

V.  Neal 

347 

r.  AVilUs 

512 

r.  Sciiool  District 

288 

Ilodj^snn  V.  ^Merest 

179 

Hordiman  v.  Herbert 

19 

llodnc'tt  i\  Forinan 

572 

Home  t'.  Smith 

319 

Ilotlsdon  i\  AV'ilkins 

395 

,  402 

Home  Tooke's  case 

108 

Hodyon  v.  Marshall 

39(i 

Horry  District  v.  Hanion 

564 

V.  Sharpe 

207 

Hoskins  v.  Miller 

519 

Iloe  V.  Mclthorpe 

518 

Hotchkiss  V.  Lyon 

LS7 

Hollhian  r.  Smith 

248 

Hcjtluim  V.  East  India  Co. 

304 

liofje  c.  Fislier 

440 

Houlditch  15.  Doiiogal 

546 

lIofj<i:c'tt  i\  Exley 

76 

Houliston  V.  Smyth 

102 

llolbrook  V.  Gay 

118 

Hovey   v.    The   Mill-Dam 

V.  Jackson 

93 

Foundry 

333 

V.  IMcBride 

74 

Hovill  V.  Stephenson       167, 

386, 

418, 

V.  i\Iix 

442 

435 

,  572 

V.  Tin-ell 

26o 

How  V.  Hall 

89 

Ilolconib  V.  Cornish 

513 

Howard  v.  Braithwaite 

384 

i'.  Holcomb 

366 

V.  Cantield 

437 

Ilolcombe  p.  Hewson 

52 

V.  Chadbourne 

392 

,  428 

Iloldi'u  L\  llt-arn 

392 

V.  City  Fire  Ins.  Co. 

449 

Holding  V.  Elliott 

282  a 

V.  JNIitchell 

531 

V.  Pigott 

294 

V.  Pccte 

64 

Holds  worth  v.  Mayor  of  Dart- 

V.  Smitli 

96 

,  203 

llKJUth 

444 

,  467 

V.  Tucker  • 

208 

Ilolladay  v.  Littlepage 

116,  120 

,  147 

Howe  V.  Howe 

388 

Holland  v.  Cruft 

52'J 

V.  Peabody 

5(io 

V.  Reves 

466 

V.  Walker 

281 

HolLnvay  v.  Raikes 

147 

Howell  V.  Lock 

421 

Holicnljadc  v.  Fleming 

569,  569  a 

V.  Richards 

69 

Hollenbeck  v.  Shutts 

281 

V.  Thomas 

73 

Hollingham  v.  Head 

52 

Ilowland  v.  Conway 

462 

Holman  v.  Burrow 

6 

V.  Lenox 

310 

V.  Kimljall 

239 

V.  Sheriff,  &c. 

394 

437 

V.  Ivjng 

486 

V.  Willetts 

394 

437 

Holme  V.  Greene 

174 

Hoxie  V.  Wriglit 

549 

Holmes  v.  Anderson 

449 

Hoy  V.  Morris 

S 

39  a 

I'.  l>addeley 

240,  240  a 

Iloyle  V.  Cornwallis 

0 

V.  JJoane 

303 

Hoyt  V.  Hanunekin          ^ 

323 

V.  Love 

78 

V.  Wildlire 

389 

V.  Pontin 

572 

Hubbard  v.  Hubbard 

77 

V.  Remsen 

542 

V.  Knous 

205 

Holsten  v.  Jumpson 

287 

V.  Russell 

84 

Holt  V.  Miers 

529 

562 

Ilubbert  V.  Borden 

281 

V.  Squire 

18G, 

194 

Hul)bly  V.  Brown 

391, 

399 

Homan  v.  Thompson 

75 

Hubly  V.  Vanliorne 

580 

Home  V.  Ld.  Bentinck 

250, 

251 

Hudson  V.  Browne 

81 

v.  ^Mackenzie 

436 

V.  Guestier 

541 

Homer  v.  Brown 

530 

r.  Harrison 

197 

V.  Wallis 

568,  572, 

581 

V.  Revett 

568  a 

Hone  V.  Mut.  Safety  Ins. 

Co. 

292 

Hudson  Co.  v.  State 

20 

Honeywood  v.  Peacock 

572 

Hnet  V.  Lcmesurier 

493 

Hood  V.  Reeve 

182 

Hulf  i\  Bennett 

i(;6 

Hook  v.  Freund 

201 

llugli's  case 

82 

Hope  V.  Evans 

200 

Hughes  V.  Biddulph 

204:  a 

V.  Harman 

568  a  1 

V.  Blake 

530 

Hopewell  v.  })n  Pinna 

41 

V.  Buckland 

49 

Hopkins  v.  Banks 

112 

V.  Budd 

562 

V.  He  GrafTenreid 

575 

V.  Cornelius 

0 

INDEX  TO    CASES   CITED. 


xU 


Section 

Section 

Hughes  V.  Hampton 

118 

Ireland 

V.  Powell 

138 

V.  Rogers 

580 

t'.  StlU" 

463 

Hnidc'kopcr  v.  Cotton 

252 

Irvine  i 

.  Stone 

66 

Hull  V.  Blake 

529 

542 

Irving  1 

;,  Irving 

675 

nmiible  V.  Hunter 

281 

Irwin  V 

Reed 

163 

V.  Mitchell 

267 

V 

.  Shumaker 

356 

Hume  V.  Scott 

461 

Irwin's 

case 

227 

Huni])hrey  v.  Humphrey 

54 

Isack  V 

Clarke 

144 

Humphreys  v.  Budd 

6 

Isham  I 

.  Gibbons 

614  a 

'V.  (iuillow 

564 

Israel  v 

.  Benjamin 

205 

V.  ]\mier 

402 

V 

.  Clark 

210 

Hunt  V.Adams                   281, 

565, 

567 

Ivat  V. 

Finch 

147,  189 

V.  Brigham 

174 

Ives  V. 

Niles 

118 

V.  Hoit 

301 

Ivey  v. 

Young 

73 

V.  Livermore 

283 

V.  Lyle 

505 

V.  Massey 

121 

J. 

Hunter  (The) 

3] 

,  37 

Hunter  v.  Caldwell 

49 

Jack  V. 

Dougherty 

26 

V.  King 

404 

Jackson  v.  Bailey 

164,  165 

V.  Leashley 

416 

V.  Bard 

109 

Huntington  v.  American  Bank 

205 

V.  Benson 

390 

V.  Finch 

564 

V.  Blanshan 

21,  144,  570 

Hurd  V.  Moring 

245 

V.  Boneham 

484 

Hurst  V.  Beach 

296 

V.  Brooks 

389,  578 

V.  Jones 

104 

V.  Browner 

103 

Hurst's  case 

316 

318 

V.  Burtis 

237,  241 

Hutcheon  v.  Mannington 

5 

V.  Burton 

572 

Hutchins  v.  Adams 

61 

V.  Chase 

265 

V.  The  State 

310 

V.  Christman 

437,  570 

Hutchinson  v.  Bowker        49, 

277 

280 

V.  Cooley 

104 

V.  Sinclair 

26 

V.  Davis 

21 

Hutton  V.  Warren 

294 

V.  Dobbin 

207 

Hyckman  i\  Shotbolt 

69 

V.  Fairbank 

^   112, 174 

Hyde  v.  Middlesex  Co. 

109 

V.  French 

239 

Hylton  V.  Brown 

559 

V.  Frier 

349 

•v 

V.  Galloway 

427 

V.  Gould 

,   568 

I. 

V.  Gridley 
V.  Hesketh 

367,  369 
74,  75,  76 

laslgl  V.  Brown 

477 

559 

V.  Hogarth 

389 

Icehour  v.  Martin 

319 

V.  Jackson 

421 

Ide  V.  Stanton 

268 

V.  Jones 

559 

Ilderton  v.  Atkinson 

391 

416 

V.  King 

4S4 

Illinois  Ins.  Co.  v.  Marseilles 

V.  Kingsley 

571 

Co. 

430 

V.  Knilien 

156 

Imlay  v.  Rogers 

553 

V.  Lamb 

144 

Imperial  Gas  Co.  V.  Clarke 

474 

V.  Larroway 

142,  144,  570 

Imrie  v.  Castrique 

546  e 

V.  Lawson 

164 

Ing  V.  Brown 

260 

V.  Leek 

443 

Inge  V.  Murphy 

488 

489 

V.  Le  Grange 

575 

Ingraham  v.  Bockins 

117 

V.  Luquere 

21,  142,  144 

V.  Hutchinson 

17 

V.  Malin 

566 

V.  State 

6 

V.  !Mann 

319 

Ingram  v.  Hada 

426 

V.  Marsh 

301 

V.  Lee 

89 

I'.  Matsdorf 

24 

Innes  v.  Campbell 

41 

r.  IMcCall 

45 

Innman  v.  Foster 

65 

d.  INlcDonald  v. 

McCall      145 

Inslee  v.  Prall 

118 

V.  McVey 

241 

d* 


xlii 


INDEX   TO    CASES  CITED. 


Section 

Jackson  v.  ^fevers  284 

V.  Miller  498 

V.  .Alills  24 

V.  Murray  46 

V.  Osborne  5G4 

V.  Pesked "  19 

V.  Phillips  581,  581  a 

V.  Pixley  2()7 

V.  Pratt  426 

V.  Reynolds  207 

V.  Kol)inson  519 

V.  Kiimsev  167,  418 

V.  KusseU  104 

V.  Scissam  207 

V.  Smith  207 

V.  Spear  207 

V.  Spragiie  301 

V.  Thomason  462 

V.  Vail  84,  575 

V.  Vanderheyden  24 

V.  Van  Dusen  272 

V.  Varick  447 

V.  Waldron  84,  575 

V.  Williamson  252  a- 

V.  AVinchester  164 

V.  Wood  539 

V.  Wright  24 

Jackson's  case  25'J 

Jacob  V.  Lindsay  90,  436,  439 

V.  United  States  83 

Jacobs  V.  Humphreys  180 

V.  Lavbourn  421 

V.  Whitcomb  102 

Jacobson  t'.  Fountain  331,  428 

Jacock  V.  Gilliam  474,  484 

James  v.  Biou  37,  196 

V.  Brawn  .      92 

V.  Hackley  176 

V.  Hat  field  347 

V.  Phelps  49 

V.  Salter  74 

V.  Spaulding  117 

V.  Trollop  144 

V.  Walrnth  69 

V.  Whaiton  120 

Jameson  v.  Drinkald  440 

Jansen  v.  Ostrander  69 

J'Ansen  v.  Stuart  55 

Janvrin  i\  Scammon  451 

Jarboe  v.  Kepler  462 

Jardine  v.  Sheridan  192,  239 

Jarrett  w.  Leonard  181 

Jasper  v.  Porter  6 

Jeacock  f>.  Faulkner  288 

Jeens  v.  Wheedon  227 

Jeflfers  v.  Kadcliire  650 

Jefferson  Lis.  Co.  v.  Cotheal  441 

Jeffreys  v.  ILarris  54 

V.  Walton  304 


Jelf  I'.  Oriel 
Jenkins  v.  Davis 

V.  Ehh-edge 
V.  Phillips 
Jenks's  case 


Section 

73 

133 

296  a 

73 

65 


Jenner  v.  Joliffe         86,  96  a,  203,  521 

Jenney  v.  Kochnan  207 

Jennings  r.  Whitakor  204 

Jermain  v.  Henuiston  190 

Jcvans  i\  Harridge  349 

Jewell  V.  Jewell  103 

Jewett  V.  Adams  394,  420 

V.  Torry  207 

Joannes  v.  Bennett  558 

John  V.  Curry  73 

Johnson  v.  Beardslee  174 

V.  Blackman  190,  353 

V.  Brailsford  273 

V.  Brccdlove  118 

V.  Browning  352 

V.  Cunningham  409 

V.  Dalton  281 

V.  Daverne  255,  577 

r.  D.  of  Marlborough         564 

V.  Durant  249 

V.  Hacker  498 

V.  Johnson  248,  272,  305 

V.  Knight  167 

V.  Lawson  103 

V.  McGruder  260 

V.  Runnels  505 

V.  Sherwiu  110 

V.  State  158 

V.  Thoroughgood  58 

V.  AVard  114,  484 

Johnston  v.  Caulkins  54 

v.  Cottingham  27,  532 

r.  Todd  103,  462 

Johnstone's  case  65 

JoUey  V.  Taylor  82,  89 

V.  Young  49 

Jones  I'.  Barclay  304 

11.  Brinkley  572 

V.  Brooke  391,  401 

V.  Carrington  189 

V.  Church  190 

V.  l)c  Kav  118 

V.  Edwards  562 

V.  Flint  179,  271 

V.  Foxall  192 

V.  (lale  6 

V.  Georgia  379 

V.  Herbert  174 

V.  Hoar  205 

V.  Jones  168 

V.  Kennedy  74 

V.  Lake  272 

V.  Lanier  452 

V.  Long  117 


INDEX   TO   CASES   CITED. 


xliii 


Jones  V.  ^lason 

V.  MeNiel 

V.  Moore 

V.  iMorrell 

V.  Newman 

V.  Overstrcet 

V.  Pony 

V.  IMii'lps 

V.  I'iteher 

V.  Piigh 

V.  Randall        482, 

V.  Sasser 

V.  Stevens 

V.  Stroud 

V.  Tarlton 

V.  The  State 

V.  Tuberville 

V.  Tucker 

V.  Vanzant 

V.  Wartl 

V.  White 

V.  Whitticr 

V.  "Williams 

V.  Wood 
Jones's  case 
Jorau  V.  Ferrand 
Jordaine  v.  Lashbroke 
Jordan  v.  Fenno 

V.  Hubbard 
V.  Lewis 
V.  Stewart 
r.  AVilkins 
Jory  l\  Orchard 
Joslyn  V.  Smith 
Joyce  V.  Maine  Ins.  Co. 
Judd  V.  Gibbs 
Judge,  &c.  r.  Briggs 
Judice  V.  Chretien 
Judson  V.  Blauchard 
Jumpertz  v.  People 


K. 


Section 

37-4,  572 

533 

112 

197,  215 

291 

5 

101 

569 

494 

240 

491,  508,  511 

26 

6o 
438 

94 

363 

178 

440 

61a 

26 
537 
190 
53  a 
165 
225 
448 
385 
260 
185 
254  a,  471 
564 
563 
561 

112 

441 

171,  195 

503,  513,  518 

485 

349 

576 


Section 
■JHH 

185,  341 
573 


Kaines  v.  Knightley 

281 

Kay  I'.  Brookuian 

575 

Kaye  v.  Waghorne 

301 

Kaywood  v.  Barnett 

103 

Kean  v.  Price 

489,  505 

Keane  v.  Smallbone 

568  a 

Keating  v.  Rice 

304 

Keeling  r.  Ball 

84,  572 

Keene  v.  Deardon 

46 

Keiglitly  V.  Birch 

394 

Keith  V.  Kil)l)e 

118 

V.  Lathrup 

576,  577 

V.  AVilson 

432 

Kell  V.  Nainliy 

207 

Kellenberger  v.  Sturtevant 

527  a 

558,  571, 


Kelley  v.  Powlct 

V.  Small 
Kello  V.  Maget 
Kellogg  ;'.  Sniith 
Kelly  V.  Mc(niire 
Kelsey  v.  l>ush 

V.  Hanmer 
Kelway  v.  Kclway 
Kemble  v.  Lull 
Kemmerer  v.  Edehnan 
Kemp  V.  King 
Kempland  v.  Macaulay 
Kemlall  v.  PoAvers 
Kendrick  v.  State 
Kennedy  v.  Erie,  &c.  Plank 
Road  Co. 

V.  Xiles 
Kennet  v.  Greenwollers 
Kenney  v.  Jones 
Kensington  v.  Liglis 
Kent  v.  Garvin 
V.  Lincoln 
Kerr  v.  Love 
Kerr's  case 

Kerrison  v.  Coatsworth 
Kerwin,  Ex  parie 
Ketchingham  v.  State 
Key  V.  Dent 
V.  Shaw 
Kidder  v.  Blaisdell 
Kidney  i".  Coekburn 
Kieran  v.  Sanders 
Kilburn  v.  Bennett 
Kiliiell'er  v.  Herr 
I'umball  V.  Huntington 
V.  MorrcU 
V.  Thompson 
Kimmel  v.  Kiunnel 
Kincaid  i\  Howe 

i'.  Purcell. 
King  V.  Badeley 
V.  Chase 
V.  iloare 
V.  Little 
V.  Paddock 
V.  Robinson 
V.  Waring 
King  (The)  c.  Mashiter 
Kingham  v.  Robins 
Kingston  v.  Lesley 

(Mayor  of)  v.  Horner  20,  45 

Kingston's  (Duchess  of)  case  19, 

248,  523,  531,  541 


301 
103 
201 
574 
237 
2;i4 
434  a 
560 
isi 
513 
164,  165 

281 

356 

392 

46 

436,  437 

117 

102 

118 

229 

396 

568  a 

462 

523,  527 

101,  197 

6 

105 

207 

108 

531 

173 

558 

360 

461 

37 

356 

288 

527,  528,  532 

533 

20,  21 

41 

66 

bb 

280 

205 

493 


Kinleside  r.  Harrison 
Kinnersley  r.  Wni.  Orpe 

Kinney  r.  Berran 

r.  Farnsworth 
V.  Flynn 


440 

484,  523, 

535 

322,  323 

145.  207 

282,  577,  581 


xliv 


INDEX  TO    CASES   CITED. 


Section 

Kinsley  v.  Robinson  385 

Kip  v/Bri^haiu  180,  539 

Kirby  v.  Sisson  558 

Kirk  V.  Eddowes  296 

Kirkland  v.  Smith  5()G 

Kirkputrick  v.  Stingley  539  a 

Kirwan  v.  Cockburn  479 

Kissam  v.  Forrest  445 

Kitchen  v.  Campbell  531,  533 

V.  Tyson  ,118 

Knapp  V.  Maltby  5G7,  5G8  a 

Knapp's  ease  219,  222,  231 

Knight  V.  Clements  564 

V.  Dauler 

V.  Marquis  of  Watei-ford 


V.  Martin 
V.  Packard 
Knott  V.  Smith 
Knox  V.  Jenks 

V.  Silloway 

V.  Waldoborough 
Koch  V.  Howell 
Kohn  V.  Marsh 
Kraft  I'.  Wickey 
Krider  v.  Lafferty 
Kuhtman  v.  Brown 


La  Caygas  v.  Larionda 
Lacon  v.  Iliggins 
Lacy  V.  McXeal 
Ladd  V.  Blunt 
Lade  v.  Holford 
Lady  Lawley's  case 
Laing  V.  Barclay 
Lainson  v.  Tremere 
Lake  v.  Auburn 

V.  King 

V.  Mumford 
Lamb  V.  Hart 

V.  Lamb 
Lamb's  case 
Lambert  v.  Hale 
Lambeth  v.  Vawtcr 
Lamey  v.  Bishop 
Lampon  v.  Corke 
Lamprey  v.  Nudd 
Lamptou  V.  Haggard 
Lanauze  v.  Palmer 
Lancaster  v.  Lane 

V.  Whitehill 
Lancum  v.  Lovell 
Lander  v.  Seaver 
Landsljerger  v.  Gorham 
Lane  v.  Chandler 

V.  Cole 


5U9 
150, 
561 
571 
385 
319 
46 
571 
529 
117 
27,  206 
544 
279 
323 


479 

75,  76 

112 

501 

46 

343 

246 

22 

420 

6 

51  a 

118 

289 

90,  215,  228 

81 

112 

73 

26,  212 

632 

5 

87 

513 

681 

139 

54 

239 

172 

319 


Lane  v.  Crombie 
V.  Han-ison 
Lane's  case 
Lang  V.  Gale 
V.  Raine 
Langdon  v.  Goddard 
V.  Langdon 
V.  Young 
Langhorn  v.  AUnutt 
Langley  v.  Fisher 

V.  Ld.  Oxford 
Lansdowne  v.  Lansdowne 
Lansing  v.  McKillip 
Lansingljurg  (Bank)  v.  Crary 
Lapliam  v.  Wiiipi)le 
Larbalestier  v.  Clark 
Larned  v.  Bullington 
Larry  v.  Sherburne 
Latham  v.  Kenniston 
Lathrop  v.  Blake 
V.  INIuzzy 
V.  Stuart 
Latkow  V.  Eamer 
Lattimore  v.  Harsen 
Laughlin  v.  The  State 
Law  V.  Law 

V.  IVIerrills 
V.  Scott 
Lawes  v.  Reed 
Lawless  v.  Queale 
Lawrence  v.  Barker 


Section 

78 

530 

6 

49 

572 

550 

279,  305 

488  a 

113 


391, 


V.  Dole 

V.  Houghton 

V.  Hunt 

V.  Ins.  Co. 

V.  Minturn 

V.  Thatcher 
Lawton  v.  Kittredge 
Laxton  v.  Reynolds 
Layer's  ease 

Lea  V.  Polk  County  Copper  Co 
Leach  V.  Armitage 


341 
186 

288 

68 

271 

284 

398 

55 

199 

177,  395 

297 

397 

6,  19 

556 

303 

102 

,322 

200 

251 

436 

96  a 

443,  449 

302 

371 

531 

559 

88 

113 

260 

559 

90,  228,  461 

40 

75 


V.  Simpson  161,  227 

V.  Thomas  3!)0 

Leader  v.  Barry  107 

Leake  v.  jNIaripiis  of  Westmcath      511 

Learned  r.  15rvant  207 

Leathe  v.  Bulfard  302 

Leathes  v.  Newith  138 

LeBaron  ik  Ci'ombie  163 

Lechmere  v.  Fletcher  539  a 

Ledford  v.  Vandyke  565 

Ledgard  v.  Thompson  669  a 

Lee  V.  Alexander  566 

V.  Birrell  248 

V.  Dick  281 

V.  Gansell  372,  375 

V.  Howard,  &c.  Co.  281 

V.  Kilburn  101 


INDEX  TO   CASES   CITED. 


xlv 


Lee  V.  Meecock 

V.  Pain 
Lee's  case 
Leeds  v.  Cook 

V.  Lancashire 


Section 

6U8 

261 

449,  401 

37 

283 


V.  Marine  Insurance  Co. 

oi'  Alexandria  178 

Lees  V.  IIolFstadt  81 

V.  Smith  430 

Lefavor  «.  Yandes  112 

Lefebure  v.  Worden  117 


Le  Fevre  v.  Le  Fevre 
LelFcrs  v.  De  Mott 
Leggatt  V.  Cooper 

V.  Tollervey 
Legge  V.  Boyd 

V.  Edwards 
Leggett  V.  Boyd 
Legh  V.  Lcgh 
Lehan  v.  Good 


302 
395 
205 
254  a,  471 
73 
17'J 
430 
173 
532 


Leicester  (E.  of)  v.  Walter  53 

Leldemau  v.  Schultz  280 

Leigh  V.  Leigh  288 

Leighton  v.  Terkins  428 

Leke's  case  51,  56,  60 

Lemiine  v.  Stanley  272 

Lench  v.  Lench  214 

Leonard  v.  Allen  55 

V.  Leonard  550 

V.  Morrill  301 

V.  Vredenburg  268 

Lesher  v.  Levan  572 

Lester  v.  Jenkins  521 

Lethulier's  case         _  292 

Levers  v.  Van  Buskirk  244 

Levi  V.  Milne  49 

Levy  V.  Cadet  112 

V.  Essex  400 

V.  Merrill  265 

V.  Pope  245 

V.  State  481 

Lewis  V.  Clerges  164 

V.  Gray  284  a 

V.  Ilogdon  420 

V.  Kramer  116 

■  V.  Marshall  484 

V.  Payn  566,  568 

V.  Peake  397 

V.  Sapio  577 

Ley  V.  Ballard  572 

LeytieUVs  (Dr.)  case  568 

Lichtenhein  v.  Boston  &  P.  R.R 

Co.  292 

Lightfoot  V.  Cameron  316 
Lightnor  t'.  AVike  163,  437 
Like  V.  Howe                     196,  204,  207 

Lilly  V.  Kitzmiller  429 

Lincoln  v.  Battflle  488 

Liudeuberger  v.  Beal  40 


Section 

Lindsay  v.  Williams  6 

Lindscv  11.  AUorncv-Gcneral  6 

Linlichl  V.  Old  CcjI".  U.Pt.  Corp.        323 

Lingan  v.  Henderson  26 

Linn  v.  Buckingham  569 

Linscott  V.  Trask  34 

Linslcy  v.  Lovely  305  a,  445 

Lipscombe  v.  Holmes  195,  205 

Lister  V.  Priestley  195 

Little  V.  Keon  386 

V.  Larrabee  252  a 

V.  Libl)y  109 

V.  Thompson  78 

Littlefield  v.  Portland  398 

V.  Bice  333 

V.  Story  173 

Littlehale  v.  Dix  323 

Littler  V.  Holland  302 

Livermore  v.  Aldrich  26,  296 

V.  Herschell  532 

Livett  V.  Wilson  46 

Livingston  v.  Bishop  533 

V.  Cox  166 

V.  Kingstead  365 

V.  Livingston  46 

V.  Tenbroeck  293 

Lloyd  V.  Lynch  212 

V.  Passingham  460 

V.  Sandiland  38 

V.  Spillett  266 

V.  Willan  27,  18i 

V.  Williams  358 

Lobb  V.  Stanley  285 

Lochlibo  (The)  443,  444 

Lock  V.  Winston  527 

Locke  V.  Norborne  536 

Lockhart's  case  231 

Lockwood  V.  Lockwood  440  a 

V.  Smith  176 

r.  Sturdevant  24 

Lodge  V.  Phipher  580 

Logan  V.  The  State  158 

Lohman  v.  The  People  455 

Lombardo  v.  Ferguson  561 

Loiulon  V.  Lynn  493 

Lonergan  v.  The  Royal  Ex.  Ass.     310 

V.  AVhitehead  118 

Long  V.  Baillie  167 

V.  Barrett  53 

V.  Davis  163 

V.  Hitchcock  463 

V.  Lamkin  450 

Long's  case  217,  2;>0 

Longcnecker  r.  Hvde        116,  120,  187 

Look  i\  BnulKy    "  331,  405 

Loomis  V.  BcdcU  571 

V.  Green  5o2 

V.  Jackson  301 

V.  Loomis  112 


xlvi 


INDEX  TO    CASES   CITED. 


Section 

Loomis  V.  AVadharas  96  a,  171 
Lopes  V.  l)e  Tastut  58,  64 
Lord  (iosford  l\  llobb  96  a 
Lord  ]\Iilton  v.  Edgcwortli  302 
Lord  v.  Moure  323 
Loring  et  al.  v.  Brackett  174 
V.  Norton  301 
V.  Stciueinan  41 
Lorton,  Viscount,  v.  E.  of  Kings- 
ton 551 
Lolhrop  V.  Blake  489 
Loud  i\  Merrill  40 
Louisiana  State  Bank  v.  Martin       41() 
State  of,  ex  rel.  Hatch 
V.  City  Bank  of  N. 
(Orleans  474 
Loveridge  v.  Botliam  212 
Low  V.  C.  &  P.  R.R.  440  a 
V.  Mitchell  54,  451 
V.  Perkins  175 
Low's  case  252 
Lowber  v.  Shaw  399,  416 
Lowe  V.  Boteler  174 
V.  JolifFe  384,  443 
V.  Lord  Huntingtower  301 
V.  Peers  19 
Lowell  V.  Daniels  24 
Lower.!).  Winters  68 
Lov/i-y  V.  Cady  84 
Loyd  V.  Freshfield  248 
V.  Stretton  392 
Lubbock  V.  Tribe           ,  558 
Lucas  V.  Bristow  282  a 
V.  De  La  Cour  177,  281 
V.  Groning  280 
V.  Kockels  59 
Ludlani  ex  d.  Hunt  84 
Lufkiu  V.  HaskeU  331,  405 
Lumley  v.  Gye  320 
Lund  V.  Tyngsboroiigh  108,  123 
Luiiiss  V.  Kowe  422 
Lu^li  V.  Druse  301 
Luttrell  V.  Pieynell  168,  533 
Lygon  V.  Stutt  142 
Lyman  v.  Lyman  207,  521 
Lynch  v.  Benton  306 
V.  Gierke  484 
V.  McIIugo  118 
Lynde  v.  Judd  508 
Lyon  V.  Ely  323 
V.  Lvman  580,  581 
V.  Miller  281 
Lyons  v.  Gregory  84 

M. 


Maberley  v.  Robins 
Maby  v.  Shepherd 


Macbride  v.  ^Macbride       451, 
Macdonald  v.  Longbottom 
Machel  v.  Winter 
Mackenzie  v.  Yeo 
Maddison  v.  Nutall 
Maddox  v.  Sullivan 
Magee  v.  Scott 
Magennis  v.  MacCullogh 
Magill  V.  Kaulliiian 
Magoun  v.  iS.E.  Ins.  Co. 
Mahan  v.  McGrady 
IMahurin  v.  Bicklbrd 
Alain  v.  Newson 

Jn  re 
Maine  v.  Harper 

Stage  Co.  V.  Longley 
Mainwaring  v.  Mytton 
Major  V.  State 
Makepeace  v.  Bancroft 
Malaun  v.  Annnon 
Malcom  v.  Scott 
Malcomson  v.  Clayton 
Malin  v.  Malin 
Malone  v.  Bartley 
jNIalony's  case 
Maltby  v.  Christie 
Malton  V.  Nesbitt 
Manby  v.  Curtis 
Manchester  Bank  v.  Moore 
L'on  Manuf.  Co. 

V.  Sweeting 
Mills  (The  case  o 
Manchester  (.The) 
Mandeville  v.  Welch 
V.  Wilson 
Mann  v.  Locke 

V.  Mann 

V.  Pearson 
iManners  v.  Postan 
Mannifold  v.  Pennington 
Manning  v.  Lechmere 
Mant  V.  Mainwaring 
Many  v.  J  agger 
Marbury  v.  JNladison 
JNIarch  v.  Connnonwealth 
Marcy  v.  Stone 
JMarianski  i\  Cairns 
Maria  Das  Dorias 
Marine  Ins.  Co.  v.  Hodgson 
Mariner  v.  Dyer 

V.  Saunders 
Markham  v.  (Jonaston 
Marks  v.  Lahee  115,  116, 

Marland  v.  Jelferson 
Marquaud  v.  Webb 
Marriage  v.  Lawrence 
Marsdcn  c.  Stanfield 
Marsh  v.  CoUnet 
V.  Davis 


Section 

456,  458 

288  a 

288 

244,  341 

189 

260,  381 

34,  513 

265 

163,  332 

541 

569 

505 

409,  423 

41 

117 

430 

401 

6 

301 

15G 

171 

51 

200 

501 

227 

«  194 

440 

142,  155 

346 


0 


418 
139 
113 

172,  173 
73 
112 
296 
301 
569 
72 
147 

353,  356 

190 

251 

6 

109 

197  a 

498 

73 

349 

558 

568 

150,  152 

392,  402 
395 

484,  493 
331 

484,  570 
110 


INDEX   TO    CASES    CITED. 


xlvii 


Section 

Marsh  v.  Gold 

l'J2 

V.  Howe 

239  a 

V.  Jones 

165 

V.  Keith 

246 

r.  Pier 

531 

Marshall  v.  Baker 

303,  304 

V.  Clili" 

186,  194 

V.  Gougler 

560,  o68 

i\  Lynn 

302,  304 

V.  Tln-aikill 

395 

Marshall's  appe'al 

287 

Marston  r.  Downs 

241 

V.  Holjbs 

24 

Martin  v.  Farnham 

450 

V.  Good 

437 

V.  (innby 

484 

V.  Ilorrell 

416 

V.  Kolley 

397 

V.  Maguire 

581 

V.  Xicolls 

646 

V.  Payne 

489 

V.  Root 

112,  174 

V.  Travellers  Ins. 

Co.           435 

Martin's  i-ase 

65 

Martindak'  r.  Follett 

568 

Martineau  v.  Woodland  416,  420 

Martinstein  v.  His  Creditors  118 

Marvin  v.  Richmond  192 

Mary  Grigg's  case  345 

Mary  Stewart  (The)  40 

Mary  (The)  18 

Mash  V.  Densham  73 

V.  Smith  260,  359 

Mason  v.  Mason  30 

Masterman  i\  Jiidson  73 

Masters  v.  Abraham  114 

V.  Drayton  392 

V.  Miller  565,  566,  568  a 

Mather  v.  Clark  349 

V.  Goddard  87 

V.  Trinity  Church  45 

Mathes  v.  Robinson  118 

Mathews  v.  Coalter  564 

V.  Ilaydon  416 

V.  Hougliton  513 

V.  Marchant  429 

V.  Smith  392 

Matthews  v.  Colburn  164 

Mattlu'ws'  estate  239 

Mattocks  V.  Lyman  197  a,  201 

V.  Whcaton  310 

Maugham  v.  Hul)bard         90,  436,  437 

Mauran  i\  Lamb  330,  353,  452 

Mawson  v.  Ilartsink   "  461 

May  V.  Babcock  305 

V.  Brown  63 

V.  Taylor  180 

Mayer  v.  Scfton  93 

Mayfield  i\  Wadley  271 


Sectioa 

Mayhew  v.  Thayer  •     441) 

Mayley  v.  Siiattuck  543 

Mayor  v.  J(jhnson  55H 

Mayor  of  Carmathen  v.  Lewis  73 
Colcliester  v.  Lewis/         333 

Doncaster  v.  Day  163 
Soutlianipton  v.  Graves    474 

McAdams  v.  Stilwell  164 

McArthur  u.  lliirll)urt  443 

McBraine  v.  Fortune  417 

McBride  c.  Watts  197 

McCann  v.  The  State  215 

McClane  v.  AVhite  290  a 

McCleidvan  v.  McMillan  199,  201 

McCorklc  V.  Binns  581 

McCormick  v.  Garnett  486 

McCraw  c.  Gentry  572 

McCrca  v.  Punnort  26 

McCullock  r.  Tvson  392 

McCuUy  V.  .Malcolm  352 

McCully's  case  65 

McDaniel  f.  Hughes  542 

McDonald  v.  Christie  440  a 

V.  Evans  463 

V.  Rainor  530 

V.  Rooke  49 

McDonnell  v.  State  49 

McDowell  V.  Langdon  532 

V.  Stimpson  517 

McElmoyle  v.  Cohen  548 

McFadden  v.  Kingsbury  89 
McGahey  v.  Allston      "        82,  92,  187 

McGee  V.  Proutv  281 

McGill  r.  Rowand  348 

McGrath  v.  Seagrave  513 

McGuire  v.  Maloncy  338 

V.  Sapvard  507 

McGuire's  case  8z 

McGunagle  v.  Thornton  41G 

McUroy\'.  Mcllroy  430 

McLitire  v.  Oliver  112,  174 

Mclntyre  v.  Mancius  451 

v.  People  363 

Mclver  V.  Humble  356,  494 

V.  Walker  301 

]McKeevlin  r.  Bresslin  474 

McKee  c.  Hicks  568  a 

V.  Nelson  440 

McKclvv  i\  De  Wolfe  323 
McKeiiire  v.  Frascr             21,  144,  570 

McKcnney  v.  Dingley  53 

McKinne}-  v.  Neil  462 

McKinnon  v.  Bliss  5 

!McKnight  i\  Lewis  352 

jNIcKonkey  v.  Gaylord  577 

McLanatlian  v.  Patten  190 

McLean  v.  Hertzog  89 

V.  State  159,  432 

McLcllan  v.  Crofton  118 


xlviii 


INDEX   TO    CASES   CITED. 


Section 

McLellan  v.  Cumberland  Bank  -Jl.') 

V.  Longfellow  23y 

V.  Richardson  252 

McMahon  v.  Burt-hell  171 

McMicken  v.  Beauchamp  564 

McXaughton's  case  440 

McNeil  V.  Philip  207 

Ex  pavtt  316 

McRae  v.  Lilly  54 

Mc'iVer  c.  Steele  305 

McWilliams  v.  Nisby  24 

]Mead  i'.  Boston  537 

V.  Robinson  413 

Meade  v.  ]\lcDowell  187 

V.  Smith  252  a 

Meadows  v.  Meadows  268 

Meagoe  v.  Siaunons                   430,  449 

Meath  (Bp.  of)  v.  Ld.  Belfield  137, 

138 
V.  Marquis  of 

Winchester                     142,  154,  240 
Mechanics'  Bank  of  Alexandria 

V.  Bank  of  Columbia  112 

Medomak  Bank  v.  Curtis  303 

Meeker  v.  Jackson  349 

Meekins  v.  Smith  316 

Melcher  v.  Flanders  569 

Melen  v.  Andrews             197,  199,  233 

Melhinch  v.  Collier                   51  a,  444 

Mellish  V.  Rawdon  49 

V.  Richardson  73 

Mellville's  (Ld.)  case     6,  65,  234,  482 

Melvin  v.  "^Vliiting               17,  164,  310 

Mercer  v.  Sparks  34 

V.  AVhall  76 

V.  Wise  207 

Merchants'  Bank  v.  Cooke  332 

V.  Spicer  430 

Meredith  v.  Footner  185 

j\Ieriam  v.  Harsen  293  ' 

Merle  v.  More  243 

Merriam  v.  Hartford  &  N.H. 

R.R.  Co.  329 
V.  Ithaca  and  Oswego 

Railroad  Co.  437 

V.  Langdon  73 

Merrifield  v.  Robbins  489 

Merritt  v.  Thompson  41 

Mersey  &  Elwell  Nav.  Co.  v. 

Douglas  62 

Mertens  v.  Nottebohms  352 

Meserve  v.  Hicks  501 

Mestayer  v.  Biggs  284 

]Metfalf  V.  Van  Bcnthuysen  558 

Metropolis  (Bank  of  the)  v.  Jones  385 

!Metzger's  case  552 

Metzner  v.  Bolton  66 

Mevey  v.  Matthews  356 

Mexico  &  S.  A.  Co.  in  re  451  a 


Section 

Meynell's  case  221 

Michaels  v.  Shaw  521 

V.  Williams  49 

Middlesex's  (Sherilf  of)  case  6 

Middleton  v.  Brewer  205 

V.  Mass  142,  144 

V.  Melton        116,  120,  147, 

150,  153,  187 

Middletown  Savings  Bank 

1'.  Bates  333 

Mifliin  v.  Bingham  118 

IMilbourn  v.  Ewart  286 

Miles  V.  Dennis  179 

V.  McCullough  316 

V.  O'lLira  165,  166 

V.  Sheward  51 

Milford  V.  Worcester  484 

Millay  v.  Butts  34 

Miller  V.  Baker  271 

V.  Bingham  190 

V.  Covert  532 

V.  Falconer  396,  417 

V.  Gilleland  568,  568  a 

V.  Hale  513 

V.  Irvine  268 

V.  Mariners'  Ch.  95,  333,  422 

V.  ]\IcQuerry  6 

V.  Russell  163 

V.  Travers     288,  289,  290,  291, 

297,  301 

V.  Williams  205 

Miller  s  case  440 

JMilliken  V.  Coombs  269 

Millman  v.  Tucker  457 

Mills  V.  Duryee  504 

V.  Gore  361 

V.  Oddy  75,  237,  241 

V.  Twist  572 

V.  Wyman  304 

Milne  v.  Leisler  108  a 

IMUward  v.  Forbes  193 

V.  Hallett  416 

]\Iilword  V.  Ingram  302 

]\lima  Queen  v.  Hepburn  124 

Minet  v.  Gibson  53 

Minns  V.  Smith  463 

Minor  v.  Mechanics'  Bank  of 

Alexandria  356 

V.  Tillotson  82,  83 

Mints  i\  Bcthil  93 

Minturn's  case  65 

Mish  V.  Wooil  440 

Mishler  v.  Baumgardner  386 

Mitchell  I'.  Belknap  119 

V.  Clark  118 

V.  Kingman  284 

V.  Mitchell  421 

V.  Scllman  469 

Mitchum  v.  State  108 


INDEX  TO    CASES   CITED. 


xlix 


Section 

Section 

Mockbee  v.  Gardiner 

398 

Morrison  v.  Kelley 

471 

]\Ioflitt  V.  The  State 

363 

V.  Lennard 

366 

IVfohawk  Bank  i\  Atwater 

421 

V.  Tumour 

272 

Moillett  V.  Powell 

73 

V.  Woolson 

10 

]Moises  V.  Tliornton 

58 

,  195 

Morae  V.  Conn.  R.  R.  Co. 

114  a 

MoUett  V.  Wackerbarth 

568 

V.  Potter 

118 

Molton  i\  Harris 

87 

V.  Royall 

174 

Molyneaux  v.  Collier 

192 

V.  Shattuck 

26 

Monkton  v.  Attor.-Gen. 

103, 

104, 

V.  Weymouth           288  6,  298  a 

105,  131 

,  134 

,  135 

Morss  V.  Morss 

364 

Monroe  (Bank  of)  v.  Culver 

115 

Mortimer  v.  McCallan 

113,  474 

V.  Field 

113 

V.  Mortimer 

215 

V.  Twistleton 

254 

,337 

Morton  v.  Chandler 

284,  474 

Montee  v.  The  Commonwealth 

49 

V.  Penny 

66 

Montgomery  v.  Ohio 

165 

V.  Webster 

485 

V.  Richardson 

205 

Moscati  V.  Lawson 

409 

V.  The  State 

158, 

161  a 

Mosely  v.  Davis                  130, 

135,  138 

Moody  V.  King 

356 

V.  Ilanfbrd 

281 

V.  Rowell     445,  447, 

448, 

577, 

Mosey's  case 

231 

580 

,  581 

Mosler's  case 

222 

Mooers  v.  Bunker 

103 

Mosley  v.  Massey 

301 

Moons  V.  De  Bernales 

550 

Mostyn  v.  Fabrigas 

320,  488 

Moore  v.  Griffin 

405 

Mott'iJ.  Doughty 

572,  575 

V.  Hitchcock 

96 

V.  Hicks 

423 

V.  King 

272 

Mount  V.  Bogert 

192 

V.  Moore 

266 

V.  Larkins 

49 

V.  Pearson 

163 

Mountstephen  v.  Brooke 

191 

V.  Terrell 

240 

Muller  V.  Moi-ris 

489 

Moore's  case 

227 

484 

jNIunderson  v.  Reeve 

174 

Moorehouse  v.  Newton 

118 

Munro  v.  De  Chemant 

27,  207 

Moorhouse  v.  De  Passou 

421 

jNlunroe  v.  Cooper 

81  a 

Moorish  v.  Foote 

394 

396 

V.  Perkins 

303 

More  V.  Salter 

568 

Murdock  v.  Union  Bank 

S8 

V.  Smith 

199 

Murray  v.  Buchanan 

558 

V.  Watts 

533 

V.  Carrett 

558 

Moreton's  case 

533 

V.  Coster 

192 

Morewood  v.  Wood           58, 

128, 

130, 

In  re 

30 

136,  137, 

145 

578 

V.  Judah 

430 

Morgan  v.  Baker 

532 

V.  Marsh 

430 

V.  Brvdges 

445 

447 

V.  Shadwell 

361 

V.  Frees 

449 

V.  Toland 

197 

V.  Morgan 

101 

Mussey  v.  Beeeher 

114 

V.  Thorne 

523 

Musson  V.  Fales 

379 

Morrell  v.  Dickey 

544 

Myers  v.  Baker 

200 

Morrill  V.  Foster 

104 

V.  Toscan 

581 

Morris  v.  Briggs 

117 

Myrick  v.  Dane 

281 

V.  Burdett 

197 

V.  Daubigny 

409 

V.  Davis 

28 

N. 

V.  liarmer 

497 

V.  Hauser 

562 

Nash  V.  Gilkieson 

54,  55 

V.  Kcyes 

532 

V.  Van  Swearingen 

452 

i'.  Lotan 

76 

Nason  v.  Thatcher 

333 

V.  Miller 

209 

Natchboh,  v.  Porter 

265 

V.  Nixon 

178 

National  Bank  of  St.  Charles 

V.  Pugh 

521 

V.  De  Bernales 

203 

V.  Thornton 

426 

Navlor  v.  Semmes 

452 

V.  Vanderen 

564 

Neal  V.  Wilding 

104 

V.  Wads  worth 

573 

Neale  v.  Fry 

497 

VOL.  I. 

e 

INDEX  TO    CASES   CITED. 


Section 

Neale  v.  Parkin  I'JT 

Nealley  v.  Greenough  5G1 

Needham  v.  Law  33;] 

V.  Smith  421 

Keelson  v.  Sanborn  2G8 

Neil  V.  Cheves  3U4 

V.  Neil  272 

Neile  v.  Jakle  197 

Neilson  v.  McDonald  361 

Nelius  V.  Brickell  572 

Nellis  V.  McCarn  440  a 

Nelson  v.  EweU  319 

V.  Hall  301 

V.  Patrick  49 

».  State  432,  462 

V.  The  United  States  323 

V.  Whittall  57o 

New  Eng.  Bank  v.  Lewis  530 

Glass  Co.  V.  Lovell      440  a 

New  Hampshire,  &c..  Lis.  Co. 

V.  Hunt  68 
New  Haven  Co.  Bk.  v.  Mitchell     115, 

116,  572 

New  MiLford  v.  Sherman  •  110 

Newbolt  V.  Pryce  291 

Newburgh  v.  Newburgh  301 

Newcastle  (Dk.  of)  v.  Kinderley      37 

Newcomb  v.  Drummond  509 

V.  Griswold  457,  465 

V.  Presbrey  564 

Newell  V.  Mayberry  565,  568 

V.  Newton  6 

V.  Simkin  473 

Newhall  v.  Holt  203 

V.  L-eson  301 

V.  Jenkins  193 

Newham  v.  Raithby  493 

Newman  v.  Atlas  Lis.  Co.  310 

V.  Doe  498 

V.  Jenkins  41,  550 

V.  Stretch  97,  108 

Newsam  v.  Carr  55 

Newton  v.  Belcher              37,  206,  207 

V.  Beresford  240 

V.  Harlaud  310 

V.  Hai-ris  450 

V.  Higgins  118 

V.  Liddiard  206,  207 

Nias  V.  N.  &  E.  Railway  Co.  240 

Nichols  V.  Dowding          111,  112,  177 

V.  Downs  196,  219 

V.  Goldsmith  106 

V.  Holgate  385 

V.  Johnson  268,  566 

V.  Parker  135,  145 

V.  Webb       115,  116,  121,  147 

Nickle  «;.  Bahlwin  119 

Nieman  v.  W.ard  145 

Niles  V.  Brackett  421 


Niles  V.  Culver 
Nix  V.  Cutting 
Noble  V.  Kennoway 
V.  Martin 
V.  JMcClintock 
Noke  V.  Ingham 
Norcott  V.  Orcott 
Norcutt  V.  Mottram 
Norden  v.  Williamson 
Norfolk  V.  Gay  lord 
Norris,  In  re 

V.  Beach 


Section 
305 
398 
292 
163 
163 
356 
409 

73 

172 

451,  451  a 

41 
316 


V.  N.  Am.  Lis.  Co.  76 

North  V.  Miles  180 

North  Lib.  (Bk.  of),«.  Davis  435,  444 
North  River  Meadow  Co. 

V.  Shrewsbury  Church  564 

Northampton  Bank  v.  "WTiiting         266 

Northrop  v.  Wright  21 

Northrup  v.  Jackson  87 

Norton  v.  Coons  281 

V.  Doherty  532 

V.  Pettiboue  109,  189 

V.  Kearney  189 

Norwood  V.  Morrow  409 

Nourse  ii.  McCay  116 

Novelli  V.  Rossi  547 

Nowell  V.  Davies  389,  408 

Noyes  v.  Canfield  280 

V.  Ward  108,  128,  139 

Nute  V.  Bryant  420 

V.  Niite  .  40,  49 

Nuttinff  V.  Page  108 


0. 

Oakapple  v.  Copons 
Oakes  v.  Hill 
O'Brien  v.  Davis 

V.  Gilchrist 
O'Callaglian  v.  Murphy 
Odell  V.  Culbert 
Odiorne  v.  Bacon 

V.  Wade 


197 

485,  498 

385 

305 

554 

118 

513 

331,  405 

52,  421,  423, 

449 

292 

117 

207 

421 

261 

110 

21 

(^Idtown  (Bank  of)  v.  Houlton        332 
Oliphant  v.  Taggart  575 

Olive  V.  Guin  603 

Oliver  v.  Bartlctt  101 

V.  State  156,  158,  159 


V.  Winkley 

Oelricks  v.  Ford 
Ogdcn  i\  Miller 
Ogle  V.  Atkinson 

V.  Pelaski 
Ohl  V.  Eagle  Lis.  Co. 
O'Kclly  V.  O'Kclly 
Ohliuill  V.  Deakin 


INDEX  TO    CASES   CITED. 


Oliver  v.  Watkmg 
O.ulchuml  V.  Barkc^^ 
OnenUeiuir.LeoAVolf 
Oi-aii-e  V.  SpnnoiicW 
Orcutt  V.  Kanney 
Ord  ».  McKce 
Orne  t>.  Townsend 
Oil-  f.  Morris 

Osborn  V.  Tliompson 
V.  U.S.  Bank 

Osborne  «.  London  Dock  Co 

Osoood  V.  Manhattan  to. 

Osrerhout  v.  Roberts 

Oswald  V.  Leigh 

Outram  u.  Morewood 

Ovenston  v.  Wilson 
Over  y.  Blackstonc 
Owen  V.  Bartholomew 

p.  Boyle 

V.  Flaek 

r.  Warburton 
Owens  V.  ColUnson 
Owings  17.  Beall 

V.  Henderson 

V.  Hull 
V.  Low 

V.  Speed 
tj.  Wyant 

P. 

Packard  r.  Hill 

u.  Richardson 

Packer  v.  Gonsalus 
Paddock  v.  Salisbury 
Page  V.  Faucett 
V.  Homans 
V.  Osgood 
V.  Page 
V.  Parker 
V.  Shellield 
Paget  V.  Paget 
Paige  V.  Cagwm 
V.  Hazard 
Pain  V.  Beeston 
Paine  v.  Edsell 
V.  Hussey 
V.  jNlclutier 
V.  Tilden 
i\  Tucker 
Palethorp  v.  Furnish 
Palmer  v.  Fogg 
V.  Haight 
V.  Ld.  Aylesbury 
V.  Stephens 
V.  Stevens 
V.  Trower 


Section 

328,  3G9,  371 
6  a 


Panton  v.  Holland 
t'.  Williums 
Papendick  v.  Bri.lgewater 
Paris  V.  Hughes 
Park  V.  iSleais 
Parke  c.  Bird 

V.  Smith 
Parker  v.  Carter 
V.  Green 
V.  Gi'out 
V.  Hardy 
V.  Haskins 
V.  Hill 

V.  INIcWilliam 
V.  ;M  err  ill 
V.  INlitchell 
V.  jMorrell 
V.  Palmer 
V.  Staniland 
V.  Vincent 
V.  Yates 
Parkhurst  v.  Lowton 


V.  Van  Cortland 
Parkin  v.  Moon 
Parkins  v.  Hawkshaw 
Parks  V.  Dunkle 
V.  Edge 

„.  The  Gen.  Int.  Assui 
Parrots  v.  Thacher 
Parry  v.  Fairhurst 
Parsons  v.  Copeland 
V.  Huff 
V.  Phipps 
V.  Purcell 
Partridge  v.  Coates 
Patten  c.  Moor 
Patterson  v.  Choate 
V.  Tucker 
V.  Winn 
Patton  V.  Ash 
V.  Craig 
V.  Goldsborough 

V.  R}an 
Paul  V.  ]Meek 
Paull  V.  Brown 
Paxton  V.  Courtnay 
V.  Douglas 
Payne  v.  Rogers 
Pay  son  v.  Good 
Peabodv  v.  Denton 
Peaceable  v.  Keep 

V.  Watson 
Peacock  v.  Harris 
Pearee  v.  Gray 

V.  Hoo]^er 
Pearcy  v.  Fleming 
Pearse  v.  Pearse 
Pearson  v.  Coles 

V.  Fletcher 


li 

Section 
CO,  (34 

49 
lO'J 
30 1 
572 
558 
385 
239,  241 
113 
190 
2 
672 
568  a 
432 
112 
331,  405 
178 
49,66 
271 
402 
243 
451,  456,  459 
268 
434 
186,  239 
558 
73 
Co.  288 
260  a 
73 
195,  527  a 
322 
385 
96  a 
560 
239  «,  242 
112,  174 
437 
349 
38 
116 
180 
117 
97 
389,  408 
282  a 
451 
172,  173 
191 
558 
429 
109,  147 
195 
528 
571 
430 
240 
75 
246 


lii 


INDEX   TO   CASES   CITED. 


Section 
Pearson  v.  LoMaitre  53 
Pease  v.  Hurst  174 
V.  Peck  480 
Peaslee  v.  Gee  301 
V.  Robbins  42 
Peate's  case  339 
Pecker  v.  Sawyer  385 
Pedler  v.  Paige  572 
Pedley  v.  Wellesley  336,  340 
Pecle  V.  Merch.  lus.  Co.  197 
Peet  V.  Dougherty  384 
Peile  V.  Stoddart  240 
Peirce  v.  Newton  461 
Peisch  V.  Dickson  280,  288 
Pejopscot  Prop's  v.  Ransom  20,  46 
Pelamoui'ges  v.  Clark  440  a 
Pell  V.  Pell  356 
Pelletreau  v.  Jackson  22,  101 
Peltzer  y.  Cranston  118 
Peiuber  v.  Mathers  260 
Pender  v.  Fobes  281 
Pendock  v.  Mackinder  372,  373 
Pennell  v.  Meyer  201 
Penniman  v.  Hartshorn  268 
Pennsylvania  v.  Bell  49 
V.  Farrell  414 
(Bank  of)  V.  Hal- 
demand  581 
Penny  v.  Porter  58,  66 
Penny  Pot  Landing  v.  Philadel- 
phia 145 
Pennypacker  v.  Umberger  385 
Penobscot  Boom  Corp.  v.  Lam- 
son  563 
Penrose  v.  Griffith  23 
Penruddock  v.  Hammond  240 
People  V.  Blakeley  458 
People  (The)  v.  Bill  363 
V.  (Jarpenter  343 
V.  Costello  380,  381 
V.  Dean  362,  414 
V.  Eastwood  440  a 
V.  Franklin  65 
V.  Gates  247 
V.  Gay  469 
V.  Green  198,  346 
V.  Herrick  375,  457 
V.  Holbrook  89 
V.  llopson  92 
V.  Howell  414 
V.  Irving  353,  452 
V.  Irwin  296  a 
V.  Kelly  451  a 
V.  Knickerbocker       158 
V.  Lohman  407 
V.  Mather  451,  454, 
456,  461 
V.  Matteson  369 
V.  McGarrcn  369 


Section 

People  (The)  v.  McMahon  225 

V.  McNair  367 

V.  Miller  249 

V.  Minch  484 
ex  rel.  Ordronanx 

V.  Clicgaray  "343 

V.  Pease  378 

V.  Phillips  247 

V.  Pollyon  471 

V.  Price  49 

V.  Robinson  158 

V.  Rogers  229 

V,  Sanchez  434,  442 

V.  Shea  101  a 
V.  Sheriff  of  New 

York  239  a 

V.  Spooner  580,  581 

V.  Throop  474 

V.  Videto  13 

V.  Whipple  375,  379 

Pepin  V.  Solomons  51,  63 

Pepoon  V.  Jenkins  501,  505 

Percival  v.  Nanson  115,  152 

Perham  v.  Reynall  174 

Porigal  V.  Nicholson  155,  421 

Perkins  v.  Perkins  42 

V.  Walker  531  a 

V.  Webster  301 

Pernam  v.  Weed  801 

Perrin  v.  Noyes  81  a 

Perry  *;.  Fleming  429 

V.  Gerbeau  200 

V.  Gibson  445 

V.  Massey  443 

Perry's  case  343 

Ferryman  v.  Steggall  427,  428 

Petapsco  Ins.  Co.  v.  Southgate        323 

Peterborough  v.  Jaffrey  440 

Peterman  v.  Laws  398 

Peters  v.  Warren  Ins.  Co.  541,  543 

Peterson  v.  Stoffles  388 

Petherick  w.  Turner  112 

Peto  V.  Blades  398 

PL-trie's  case  243 

Pettibone  v.  Deringer  323,  352 

Pettingill  v.  Dinsmore  55 

Petty  V.  Anderson  185 

Peyreaux  v.  Howard  6 

Peytoe's  case  302 

Peyton  v.  Hallett  392 

Peytona  (The)  427 

Pharaoh  v.  Lush  288  a 

Phealing  v.  Kenderdine  451 

Phelps  V.  Cutler  80 

V.  Foot  101 

V.  Rilev  167,  418 

Phenix  V.  Ingraham  180,  392 

Philadelphia  &  Trenton  Co. 

V.  Stimpson  423,  449 


INDEX  TO   CASES   CITED. 


PhilaaclplnaW.&B.ll.R.Co 

V.  Howard 
Phillips  l^  Allen 
V.  lienck 
V.  Earner 
V.  Hall 
V.  Hunter 
V.  Irving 
V.  Kinglield 
V.  Shaw 
1},  Wells 
,;.  AVinbm-u 
PluUIskirk  V.  PluckwcU 
Phipps  V.  riteher 

v.  Sehullhorpc 
Piatt  V.  ISlcCuUough 
Pickard  o.  Bailey 
V.  Sears 
Pickering  v.  Bp.  of  Ely 
V.  Dowson 
V.  Noyes 
Picton's  (Gen.)  case 
Piddoek  V.  Brown 
Pierce  v.  Butler 
V.  Chase 
V.  Hoilinan 
V.  Parker 
V.  Weymouth 
V.  Wood 
Plerson  i'.  Hutchinson 
Pigot  V.  Uavies 

V.  HoUoway 
Pike  V.  Crehore 

V.  Hayes 
Pile  V.  Benham 
Pirn  V.  Currell 
Pipe  V.  Steel 
Pitmaii  V.  Maddox 
Pitt  V.  Chapelow 

V.  Shew 
Pittam  I'.  Foster 
Pitton  V.  Walter 
Pittslield,  &c.  P 

son 
Pizarro  (The) 
Planehe  v.  Fletcher 
Plank-Road  Co.  r.  Bruce 

V.  Wetsel 
Plant  V.  McEwen 
Planters'  Bank  v.  George 
Plattekill  v.  New  Paltz 
Plaxton  I*.  Hare 
Pleasant  v.  State 
Plimptcm  i\  Chan\l)erlam 
Pluml)e  c.  Whiting 
Pluuuner  v.  Briscoe 

V.  Sells 
Plunkett  V.  Cobbett 
Pocock  c.  Billings 


Section 

1G4 
28 
53-2 
445 
207 
542 
49 
461 
70 
565 
227 
78 
409 
207 
20 
486,  514 
204 
115 
281 
246 
492 
361 
399,  401 
423 


115 


53 
288 
304 
112 
558 
521 
437 
513 
109 
428 
139 
356 
117 
207 
49 
176 
510 


Co.  V.  Harri- 

484 
31,37 
488 
20 
568  a 
179 
452 
331 
143,  150 
432 
109 
387 
92,  113,  207 
185 
251 
190 


Podgett  V.  Lawrence 
Poignard  o.  Smith 
Pole  V.  Uogers 
Pomeroy  v.  Baddeley 
Pond  0.  Hartwell 
Ponsford  v.  O'Connor 
Pontilex  i".  Jolly 
Pool  V.  Bridges 

V.  Dicas 
Poole  y.  Palmer 

V.  Richardson 
V.  Warren 
Pope  V.  Askew 

V.  Devereux 
Poplin  V.  Hawkc 
Porter  v.  Byrne 

V.  Ferguson 
V.  Judson 
V.  Pillsbury 
V.  Poquounoc  Man 
V.  Seller 
V.  State 
Potter  V.  Baker 
11.  Ware 
V.  Webb 
Potts  V.  Everhart 
Poultney  v.  Ross 
Poulter  V.  KiUingbeck 
Powel  V.  Hord 

11.  Milburn 
V.  ]\Ionson 
Powell  V.  Blackett 
V.  Bradbury 
V.  Edmunds 
V.  Ford 
V.  Gordon 
V.  State 
V.  Waters 
Power  V.  Frick 
V.  Kent 
Powers  V.  ISIcFerran 
V.  Nash 
V.  Russell 
V.  Shcpard 
V.  Ware 
Prather  v.  Johnson 
Pratt  V.  Andrews 
V.  Goswell 
V.  Jackson 
Prentice  v.  Achorn 
Prescott  V.  Wright 
Prest  V.  Mercereau 
Preston  v.  Bomuar 
V.  Carr 
V.  Harvey 
V.  Merceau 
Prettyman  v.  l>ean 
Prevost  V.  Gratz 
Prewitt  V.  Tilly 


Co. 


■     liii 

Section 
189 
349 

320 
432 
420 
320 
81 
108 
,  116,  120 
395,  407 
440 
558 
577 
180 
550 
275 
108 
115 
322 
440 
54 
432 
532 
386 
55 
109 
118 
271 
394 
35 
26 
572 
473,  559 
281 
577 
392 
462 
164 
576 
239 
575 
188 
74 
323 
566 
116,  120 
54 
559 
288 
284 
284 

lis 

301 
240 
531 

275,  281 
358 
564 

331,  430 


liv 


INDEX   TO    CASES   CITED. 


Price  11. 

V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 

Primm  v 


Currell 
Dewluirst 
Harrison 
llarwood 
Ld.  Torrington 
Littlewood 
^Morris 
Faire 
Powc-U 
Stewart 


Prince  v.  Blackburn 

V.  Samo 

V.  Sbepard 

V.  Smith 

V.  Swett 
Printnp  v.  Mitchell 
Printz  (!.  Cheney 
Pritchard  v.  Bagshawe 
V.  Brown 
V.  Draper 
V.  Foulkes 
V.  ISIcOwea 
V.  Walker 
Pritt  r.  Fairclough 
Proctor  V.  Lainson 
Proiit}'  V.  Ruggles 
Provis  V.  Reed 
Pullen  V.  Hutchinson 

V.  Shaw 

V.  The  People 
Pully  V.  Hilton 
Punderson  i\  Shaw 
Purcell  V.  IN'IcNamara 
Purviance  v.  Dryden 
Putnam  v.  Lewis 
Putt  V.  llawstern 

V.  Roster 
Pye's  case 
Pyke  V.  Crouch 
Pytt  V.  Griffith 


Q. 


Section 

128 

541,  546 

559 

2(j8 

116 

137 

323 

289 

440 

41 

572,  575 

467 

420 

118 

118 

113,  200,- 564 

451  a 

203 

26,  266 

112 

243 

118 

195 

40,  116 

180 

322 

469 

564,  569,  575 

564 

335 

485 

118 

56,  60,  70,  78 

358,  395 

212 

533 

633 

65 

536 

572 


Quarterman  v.  Cox  422 

Queen  (The)  v.  Muscott  257 

Queen's  (The)  case  88,  201,  218, 

234,  370,  371,  462,  463,  465,  467 

Quick  V.  Staines  207,  210 

Quimby  v.  Buzzell  572 

V.  Wroth  430 

Quincey  v.  Quincey  285 


R. 


Radburn  v.  Morris  428 

RadcliiFe  v.  Fursman  240 

V.  United  Ins.  Co.     479,  491 


Section 

Radford  v.  Mcintosh 

92,  195 

Rallies  V.  Wichelhaus 

288  a 

Raggett  V.  Musgrave 

198 

Ralph  V.  Brown 

558 

Ralston  V.  Miller 

145 

Ramadge  v.  Ryan 

441 

Rambert  v.  Cohen 

90,  436 

Rambler  v.  Tryon 

440 

Ramkissenseat  v.  Barker 

371 

Ranisbottom  v.  Turnbridge 

87,  89,  96 

Ramuz  v.  Crowe 

558 

Randiffe  (Ld.)  v.  Parkins 

144 

Rand  v.  Mather 

303 

Randall  v.  (kirney 

316 

V.  Lynch 

205 

V.  Parramore 

551 

V.  Phillips- 

392 

Randall's  case 

340 

Randel  v.  Chesapeake 

563 

Randle  i\  Blackt)urn 

201 

Randolph  v.  Gordon 

142 

Rands  v.  Thomas 

383 

Rangeley  v.  Webster 

640 

Rank  v.  Shewey 

87 

Rankin  v.  Blackwell 

564 

V.  Horner 

194 

V.  Tenbrook 

109 

Ransom  v.  Keyes 

427 

Rape  V.  Heaton 

488  a 

Raper  v.  Birkbeck 

566 

Rapeyle  v.  Prince. 

636 

Rastall  v.  Stratton 

70 

Ratcliir  V.  Chapman 

130 

V.  Pemberton 

302 

V.  Planters'  Bank 

568  a 

V.  RatcliU' 

507 

V.  Wales 

253  a,  344 

Ravee  v.  Farmer 

532 

Raven  v.  Dunning 

356 

Rawlings  v.  Chandler 

469  a 

Rawlins  v.  Desborough 

74,  441 

Rawson  v.  Haigh 

108,  110 

V.  Turner 

533 

V.  Walker 

281,  304 

Raymond  v.  Longworth 

484 

V.  Raymond 

281 

V.  Squire 

173 

Raynham  v.  Canton 

489,  505 

Read  v.  Brookman 

45,  566 

V.  Dunsmore 

73 

V.  James 

445 

V.  Passer 

86,  107,  493 

V.  Sutton 

508 

Reade's  case 

210 

Reading  v.  McCubbia 

145 

Reardcn  v.  Minter 

571 

Reay  v.  Richardson 

197,  287 

Recce  v.  Rigby 

49 

V.  Trye 

240 

INDEX  TO   CASES   CITED. 


Ptced  V.  Anderson 

V.  Dick 
V.  Diokey 

V.  Jackson  19,  loo, 
V.  Kemp 
V.  Lamb 

V.  Propr'S  of  Locks 
V.  Rice 
Rees  V.  Overbaugh 
V.  Smith 
V.  Walters 
V.  Williams 
Beeves  v.  Matthews 

V.  Slater 
Regicide's  case 
Regina  v.  Adderbury 
V.  Arnold 
V.  Atwood 
V.  Avery 
V.  Baldry 
V.  Ball 
V.  Bannen 
V.  Barber 
V.  Bedford 
V.  Biikett 
V.  Bird 

v.  Birmingham 
V.  Blake 
V.  Bond 
V.  Boulter 
V.  Butler 
V.  Caldwell 
V.  Champney 
V.  Chapman 
t'.  Child 
V.  Olay 
V.  Coote 
V.  Cranage 
V.  Dent 
V.  Duneombe 
V.  Dyke 
V.  Farley 
V.  Ford 
V.  France 
V.  (iarliftt 
V.  Gardiner 
V.  Garner 
V.  Gazard 
V.  Gould 
V.  Hall 
V.  Ilankins 
V.  llartington 
i\  Hawks 
V.  Hearu 
V.  Hewett 
I'.  Hill 
V.  Hincks 
V.  Holden 


Section 

5(>3 
427,  436 
110 
liiy 
137,  139, 145 
568 
50" 
&c.  49,  237 
323 
566 
74 
142 
672 
360 
69 
256 
175 
2'>4  225,  229 
220 
243 
220  a 
435,  444 
382 
580 
138 
381 
;166 
109 
233 
65 


257 


Iv 


Section 
220 
252 
241 
562 
222 
28 
156 
130,  139 
158 
223 
184,  362,  537 
227 
435,  445,  576,  580 
92 


218,  227 
580 
257 
435 
167 
54 
34 
62 
488 
463 
381 
239,  241 
436 
554 
193,  225,  451 
257 
219,  220 
249,  364 
231 
113 
560 
534 
233 
222,  232 
156 
365 
362 
462,  465 


Regina  v.  Holmes 
V.  Hughes 
i\  Junes 
V.  Kitson 
V.  Laugher 
V.  Mansfield 
V.  Megason 
V.  Milton 
V.  Mooney 
V.  Moore 
V.  Moreau 
V.  Morse 
V.  Murjihy 
V.  Newton 
V.  Overton 
•      V.  Owen 
V.  Parker 
V.  Perkins 
V.  Philpots 
V.  Pikesley 
V.  Plummer 
V.  Povey 
V.  Roberts 
V.  Shellard 
V.  Spicer 
f.  St.  George 
11.  Stoke 
V.  Taylor 
V.  Yickery 
V.  Vincent 
V.  Weller 
V.  Wheeley 
V.  Williams 
V.  Wooldale 
V.  Worth 
V.  Yates 
Reid  V.  Battia 

V.  Margison 
Reillv  «•  Fitzgerald 
Reitenback  v.  Reitenback 
Remon  v.  Havward 
Sererr.  Bank  of  Columbia 

Respubliea  i'.  Davis 
V.  Gibbs 
V.  Keating 
V.  McCarty 
I'.  Ross 
Revett  r.  Braham 
Revis  V.  Smith 
Rex  V.  Addis 
V.  Aikles 
V.  Algood 
V.  Allison 
V.  All  Saints 
i'.  Almon 
V.  Antrobus 
r.  Appleby 
V.  Arundel 
t'.  Ashton 


448 
226 
257 
157,  158 
436 
224,  225 
166 
488 
257 
462,  463,  465 
65 
462 
292 
449,  463 
83 
102 
227 
226 
335 
69 
115,  147,  150 
257 
89 
508 
131 
233 
280 
84,  292 
187 
456 
414 
218,  224 
362 
76,  580 
452 
381 
484,  4i»3 
473,  475 
86 
342 
36,  234 
138 
199,  217,  233 
6,  37 
158,  162 


Ivi 


INDEX   TO   CASES   CITED. 


Section 

Section 

Rex  V.  Atkins 

195 

Ilex«.  Dunn 

223 

V.  Atwuod 

380 

t'.  Durham 

380 

V.  r,al)l) 

471 

V.  Edwards 

449 

457,  463 

V.  liakcT 

15G 

V.  Ellis 

225 

V.  Ball 

63, 

224,  227 

V.  Embden 

512 

V.  Barnard 

380,  459 

V.  p]noch 

218,  222 

V.  IJarnes 

195,  018 

V.  Eriswell   99,  125 

,  138 

163, 553 

V.  Bartlett 

215 

V.  Eagent 

158,  159 

V.  Batlnvick 

342,  570 

V.  Eagg 

224 

V.  Beanlniore 

319 

V.  Farringdon 

21 

■  V.  Bt'llaniy 

508 

V.  Earrington 

34 

V.  Benson 

82,  512 

V.  Fearshire 

227 

V.  Bevan 

403 

V.  Eerrei'S 

343 

V.  Bonner 

158,  160 

V.  Eerry  Erystone 

125 

V.  Book 

253 

V.  Pltzgerald 

484,  493 

V.  Borrett 

■  195 

V.  Fletcher 

218, 

363,  379 

V.  Boston            362, 

390, 

414,  537 

V.  Ford 

373,  378 

V.  Bishop  of  Ely 

474 

v.  Forsyth 

479 

V.  Brandreth 

111 

V.  Foster 

228 

V.  Brangain 

471 

V.  Fox 

418 

V.  Brasie 

•367 

V.  Francklin 

491 

V.  Brewer 

244 

V.  Frederick 

335 

V.  Britton 

193,  226 

V.  Fuller 

34 

V.  Brommiek 

195 

V.  Fursey 

84,  94 

V.  Brooke 

445,  447 

V.  Gardiner 

374 

V.  Brown 

245 

V.  Gardner 

195,  479 

V.  Bryan 

21 

V.  Gay 

.     161 

V.  Burditt 

78 

V.  Gibbons 

222 

223,  248 

V.  Burley 

379 

t'.  Gilham 

193,  229 

V.  Callahan 

161 

V.  Gilroy 

459 

V.  Careinion 

96, 

372,  375 

V.  Gilson 

87 

V.  Carty 

227 

V.  Gisburn 

95,  422 

V.  Castleton 

558 

V.  Goodere 

432 

V.  Cator 

580 

V.  Gordon  (Ld.  George) 

83,  92, 

V.  Chapman 

435 

482 

V.  C'haiipell 

90,  224 

V.  Green 

229 

V.  Christie 

158 

V.  Greene 

225 

V.  Clai)liam 

493 

V.  Greepe 

378 

V.  Clarke               54, 

102, 

210,  469 

V.  Griffin 

222,  232 

V.  Clowes            201, 

218, 

221,  223 

V.  Grimwood 

484 

V.  Cliviger 

342 

V.  Gully 

6 

V.  Cole 

390 

V.  Gutch 

36,  234 

V.  Collery 

432 

V.  Ilarbome 

35 

V.  Cook 

432 

V.  Hardwick 

112, 

174,  175, 

V.  Cooper 

221 

223,  331 

V.  Cope 

116 

V.  Hardy 

111,  250 

V.  Cotton 

131 

V.  Hargrave 

380 

V.  Court 

218, 

219,  229 

V.  Harringworth 

569 

V.  Crockett 

158 

V.  Harris 

227, 

231,  257 

V.  Davis 

225,  373 

V.  Hastings 

380 

V.  Dawlicr 

380 

V.  Hawkins 

35,  80 

V.  De  Beringer 

6,491 

V.  Hay 

30 

V.  Dean  of  8t.  Asaph 

49 

V.  Hay  ward 

158 

V.  Derringtou 

229 

V.  Hazy 

78,  82 

V.  Despard 

382 

V.  Hearne 

218 

V.  Dixon 

18,  243 

V.  Hebden 

536 

V.  Doherty 

343 

V.  Higgins 

218 

V.  Doran 

87 

V.  Hodgdon 

458 

V.  Drummond 

157 

V.  Hodgkiss 

461 

Rex 


INDEX  TO    CASES   CITED. 

Ivii 

Section 

Section 

X  V.  Hodp^son 

54 

Rex  V.  Morton 

558 

c.  Ilollister 

478 

V.  Mosley 

158 

1).  Holt 

479,  4!)2 

V.  iVIudie 

257  a 

V.  Hood 

335 

V.  ^lutincers 

363 

I'.  Ilo.-itmon  of  Newcastle          47.3 

V.  Xeale 

381 

V.  II()ii;;litoii 

53 

V.  Neville 

2(J9 

V.  Howard 

83,  91,  92 

V.  Noakes 

381 

V.  Howes             • 

90,  111,  142 

V.  Nortiianipton 

53 

V.  Hii})e 

86,  96 

I'.  North  Pendleton 

493 

V.  Hiuks 

65,  160 

V.  Nuneham  Courtney 

125 

V.  Hunt 

28 

V.  Nutt 

36 

V.  Hunter 

246 

V.  Oldroyd 

442,  444 

V.  Hutcliinson 

156 

V.  Page  ' 

658 

V.  Inluib.  of  Castle  " 

Morton         96 

V.  Paine 

218 

V.  Inliab.  of  Holy  T 

rinity     87,  96 

V.  Parker 

257  a 

V.  Inhab.  of  Netiierthong          333 

V.  Parratt 

222 

V.  Jacobs 

227 

V.  Partridge 

34 

,  220,  222 

V.  Ja.iiger 

343 

V.  Pedley 

440 

V.  Jarvis 

78 

V.  Pegler 

451 

V.  Jenkins 

222,  232 

V.  Phillips 

28 

V.  Johnson 

40 

V.  Picton 

488 

V.  Jones          6,  92, 

218,  220,  222 

V.  Pike 

157,  367 

232,  319,  380 

V.  Pippitt 

70 

V.  Jordan 

28 

V.  Pitcher 

458,  460 

V.  Justices  of  Buckingham        474 

V.  Plumer 

40,  198 

V.  Justices  of  Surrey                  478 

V.  Pountney 

222,  223 

V.  Kea 

253 

V.  Pratten 

78 

V.  Kerne 

195 

V.  Pressly 

90,  228 

V.  King 

484,  498 

V.  Priddle 

37-3 

V.  Kingston 

223 

V.  Purnell 

474 

V.  Kirdford 

331 

V.  Rams  den 

437 

V.  Knill 

257,  259 

V.  Rawden 

87 

V.  Knollys 

6 

V.  Read 

227,  228 

v.  Lafone 

363 

V.  Reading 

344,  457 

V.  Laindon 

285 

V.  Reason  et  al. 

156 

159,  161 

V.  Leefe 

65 

V.  Rhoades 

484,  493 

V.  Lewis             225, 

226,  451,  457 

V.  Richards 

221 

V.  Lingate 

223 

V.  Rivers 

224 

225,  227 

V.  Lloyd 

229 

V.  Roberts 

53 

V.  Lloyd  d  al. 

156 

V.  Roddam 

312 

V.  Locker 

335,  407 

V.  Rogers 

78 

V.  Long  Buckby 

\        21,  46 

V.  Rookwood 

461 

V.  Lucas 

473 

V.  Row 

223 

V.  Luckup 

403 

V.  Rowland 

363 

V.  Luile                    5 

,  28,  253,  344 

V.  Rowh-y 

165 

V.  MagiU 

229 

V.  Rudd 

335, 

386,  413 

V.  ]\Ialu'w 

257 

V.  Russell 

319,  559 

V.  Mai-tin 

54,  484,  493 

V.  Ryton 

21 

V.  Mashiter 

280 

V.  Sadler 

311 

V.  Mayor 

536 

V.  Saunders 

224 

V.  Mayor  of  London 

331 

r.  Scaife 

.    159 

V.  IMead 

156,  343 

V.  Scammonden 

285,  305 

V.  ^lerceron 

193 

V.  Searle 

440 

V.  Merchant  Tailors 

474 

V.  Sergeant 

336,  343 

V.  Miller 

6 

IK  Sextons 

222 

V.  Mills 

220,  222 

V.  Sluiw 

225, 

229,  237 

V.  ]\Ioore 

381 

V.  Shelley 

83, 

475,  478 

V.  Morgan 

371,  578 

V.  Shepherd 

222 

V.  IMorris 

512 

t'.  Sherilf  of  Chester 

473 

Iviii 


INDEX  TO   CASES  CITED. 


Section 

Section 

Rexr.  Sherman 

363 

Rex  V.  Wilkes 

321 

V.  Siiipley 

18 

i\  Williams        367, 

392, 

403,  412 

V.  Simons 

45, 

200,  224,  229 

V.  Withers 

237,  479 

V.  Simpson 
V.  Slancy 

222,  223 

V.  Woburn  1 75,  330, 

331 

353, 452 

451 

V.  Woodcock             ] 

L50, 

158,  159, 

V.  Slaughter 

223 

161,  346 

V.  Smith      53, 

243, 

335,  473,  482, 

V.  Wright 

440 

508,  513 

V.  Wylie 

o:i 

V.  Smith  &  Homage 

224,  225 

... 

34 

V.  Smithie 

215 

V.  Yewin 

450,  459 

V.  Spencer 

223,  512 

Rey  V.  Simpson 

288 

V.  Spilsbury 

158, 

160,  227,  229 

Keyner  v.  Hall 

212 

V.  Steptoe 
V.  Stevens 

218 

Reynolds  v.  Manning 

120,  201 

39 

V.  Rowley 

113,  246 

V.  St.  Martin's 

436,  437 

I'.  Staines 

171 

V.  St.  Mary  Magdalen,  Ber-             | 

Rhine  c.  Robinson 

165 

mondsey 

333,  347 

Rhodes  V.  Ainsworth 

139,  405 

V.  Stone 

78 

t'.  Bunch 

55 

V.  St.  Pancras 

531,  534 

Ribbans  t'.  Crickett 

205 

V.  Sutton 

5,  139,  491 

Ricard  v.  Wiiliaius 

17 

V.  Swatkins 

222,  228 

Ricardo  v.  Garcias 

546 /i 

V.  Tarrant 

90,  228 

Rice  V.  Austin 

420 

V.  Taylor 

222,  223 

V.  K.E.  Marine  Ins 

Co 

444 

V.  Teal 

383,  '458,  459 

V.  Peet 

284 

V.  Teasdale 

412 

V.  Rice 

239  a 

V.  Tellicote 

228 

V.  Wiikins 

■  394 

V.  Thanet 

364 

Rich  V.  Flanders 

177 

V.  Thomas 

219,  223 

V.  Jackson 

265,  281 

V.  Thornton 

222 

225,  229,  230 

V.  Topping 

399 

V.  Tilly 
V.  Tower 

403 

Richards  v.  Bassett 

130 

,  131,  137 

473 

V.  Howard 

118 

V.  Tubby 

225 

V.  Morgan 

obo 

V.  Turner 

78,  79,  233 

Richardson  v.  Alien 

443 

V.  Twining 

35,  41 

V.  Anderson 

173,  487 

V.  Tyler  . 

218,  223 

i\  Carey 

110,    O&J 

V.  Upchureh 

222,  223 

V.  Desborough 

260  a 

V.  Upper  Uoddington                  239 

V.  Dorr 

24 

V.  Van  Butchell 

158,  160 

V.  Fell 

81 

V.  Vaughan 

432 

V.  Freeman 

333,  427 

V.  Verelst 

83,  92 

V.  Hooper 

303 

V.  Virrier 

257  a 

V.  Hunt 

3b7 

V.  Wade 

367 

V.  Learned 

341 

V.  Walker 

218,  225 

V.  Newcomb 

581 

V.  Walkley 

223 

V.  Watson 

288 

V.  Waller 

65 

V.  AVilliams 

362 

V.  Walter 

36,  227,  234 

Richmond  v.  Patterson 

484 

V.  Waters 

65 

1'.  Thoniaston 

108 

V.  Watkinson 

245 

Rickards  v.  Murdock 

441 

V.  Watson 

40,  52,  65,  90,  101, 

Rickets  v.  Salwey 

63,  72 

111,  198, 

250, 

256,  423,  449, 

Ricknian's  case 

34,  53 

459,  460 

Riddick  v.  Leggatt 

301 

V.  Webb 

225,  381 

Riddle  V.  Moss 

402 

V.  Wells 

381 

Ridgway  v.  Bowman 

281 

V.  Westbeer 

379 

V.  Ewbank 

81 

V.  White 

367 

Ridley  v.  Gyde 

108,  110 

V.  Whitley  Lower 

175 

Rigg  V.  Curgenwen 

200,  210 

V.  Wickham 

285 

Riggins  V.  Brown 

165 

1?.  Wild 

225,  229 

Riggs  V.  Taylor 

349 

V.  Wilde 

6,  223,  229 

Right  c.  Price 

272 

INDEX   TO    CASES   CITED. 


Riley  v.  Gerrisli 
V.  Suydiiiu 
Rind<,'e  v.  Brock 
Kinggokl  V.  Tyson 
Rioters  (The) 
Hiuley  V.  Thompson 

r.  Warreu 
llipon  i:  Davies 
liipple  V.  Kipple 
Kishton  v.  jS'esbitt 
lloach  V.  Garvan 

V.  Learned 
Robb  V.  Starkey 
Robbius  V.  King 
V.  Otis 
Roberts  v.  Adams 
V.  AUatt 
V.  Doxon 
V.  Simpson 
V.  Tennell 
V.  Trawick 
V.  Wliiting 
Roberts's  case 
Robertson  v.  French 
V.  Lynch 


Robinson 


V.  Smith 

V.  Stark 

V.  Teal 
V.  Batchelder 
V.  Cushman 
Dana 


Section 
281 
185 
118 
385 
412 
395 
f) 
245 
505,  546 
lUG 
645 
108 
660 
254,  334 
58,  68 
392 
451 
93 
246 
551 
392 
420 
221,  222 
278 
58 
427 
440 
6 
304 
211 
365 


Roe  V.  Lowe 

V.  Rawllngs 
V.  llcade 

Roelker,  In  re 

Rogers  v. 

V. 
V. 
V. 
V 


lix 


Section 

46 

21,  152,  570 

46 

319 

58,  71,  130,  14;i 

427 


562 
421 
207 
533 

395 
129,  136 
373 
304 
385 
608 
305 
6  a 
493 
532 
55,  482,  491 
286 
451,  460 
121 


0, 


Fitchburg  R.R.  Co.  114  a 


Flight 
Gilman 
Jones 

Hutchinson 
V.  ^Larkiss 
V.  Nahor 
V.  Frescott 
V.  Trull 
V.  Yarrow 
Robinson  s  case 
Robison  v.  Alexander 

V.  Sweet 
Robson  V.  Drummond 

V.  Kemp 
Roby  V.  Howard 
Rochester  i'.  Chester 
Roden  v.  Ryde 
Rodman  v.  Forman 

V.  Hoops 
Rodriguez  i\  Tadmire 
Rodwell  V.  Phillips 
V.  Redge 
Roe  V.  ArchVp  of  York 
V.  Day 
v.  Ferrars 
V.  Ireland 
V.  Jeflrey 


240  a 
479 
543 
180,  462 
322 
27,  207 
505 
3U,  319 
196 
53 
193 
108,  195,  527 
281 
181,  240,  245 
76 
440 
575 
70 
118 
55 
271 
35 
265 
197,  201,  287 
202 
45 
130 


Allen 
Berry 
Cuslance 
l)il)ble 
Pitcher 
V.  Thompson 
V.  Turner 
V.  Wood 
Rogers's  case 
Rolian  V.  Hanson 
Rohrer  r.  Morningstar 
Rolfy.  Dart 
Rollins  V.  Dyer 
Romero  v.  United  States 
Roukeudortr  v.  Taylor 
Root  V.  Fellowes 

King 
Ropps  V.  Barker 
Rose  V.  Blakemore 
V.  Bryant 
V.  HImely 
V.  Savory 
Roseboom  v.  Billington 
Rosevelt  v.  ]Marks 
Ross  V.  Anstell 
V.  Bruce 
V.  Buhler 
V.  Gould 
r.  Lapham 
V.  Rcddick 
V.  Rhoads 
Rothehoe  v.  Elton 
Kotherham  v.  Green 
Rowe  V.  Brenton 
V.  Grentel 
V.  Hasland 
Rowland  c.  Ashby  _ 

RowUindson  v.  Wamwright 
Rowley  i\  Ball  ^q 

Rowntree  v.  Jacobs  ,^^ 

Rowt  V.  Kile  ^^ 

Ruau  V.  Perry  ,,„- 

Rncker  v.  Palsgrave  -^^ 

Rudd's  case  oq!^ 

Rudge  V.  Ferguson  " 

Rugiiles  r.  lUickner  - 

Runjlbrd  t^  Wood  ^^. 

Rank  i\  len  t.\th. 

Rush  V.  Flickwu-e  ^^- 

i\  Smith  .-o 

Rushforth  i'.  Pembroke  1^-^^  -^f^ 

Russell  V.  Beuckley  g^,. 

V.  Blake  ,.,_    .\r. 

n  4Kr.  43<,  469 

V.  Coffin  '  .^^ 

U.Jackson  23<,24U, -** 


541 
118 
121 
112 
6 
89 
364 
49,  160,  425,  564 
55 
6 
145 
396 
71 
151,  512,  517 
5 
41 
224,  227 
84 
558 


Ix 


INDEX  TO   CASES   CITED. 


Section 
Russell  V.  Rider  437,  466 

Russel  V.  Werntx  287 

Russian  Steam  Nav.  Co. 

V.  Silva  292 

Rust  V.  Baker  41 

Rustell  V.  Macquister  53 

!lliiistin"s  ease  366 

Kutlierford  v.  Rutherford  272 

Rutlaud  &  B.  R.ll.  Co.  v.  Sim- 
sou's  Adm'r  329 
Rjau  V.  Sams  207 


S. 


Sabine  v.  Strong 
Sackett  v.  Spencer 
Sage  V.  IMeAlpine 

V.  Wilcox 
Sainthill  v.  Bound 
Salem  v.  Lynn 

V.  Williams 


323,  418 
440 
532 
268 
449 
1U8 
208 


Salem  Bank  v.  Gloucester  Bank     200, 

208 

Salisburj'  v.  Connecticut  412 

Salmon  v.  Ranee  392 

Saltar  v.  Applegate  20  a 

Sake  V.  Thomas  484,  493 

Saltmarsh  v.  Tuthill  385 

Sample  v.  Frost  239  a 

Sampson  v.  Overton  506 

Sanborn  v.  Xeilson  192 

Sanches  v.  People  434  a 

Sanderson  v.  Collman  207 

V.  Symonds  565 

Sandford  v.  Chase  316,  317,  318 

V.  Hunt  75 

V.  Raikes  285 

V.  Remington  245 

Sandilands  v.  Marsh  112 

Sangster  v.  Mazarredo  177 

Santissima  Trinidad  (The)  4 

Sargeant  v.  Sargeant       172,  190,  353, 

354 

Sargent  v.  Adams  297 

V.  Fitzpatrick  532 

V.  Hampden  239  a 

Sartorious  v.  State  432 

Sasscer  v.  Farmer's  Bank  5 

Satterthwaite  v.  Powell  30 

Saunders  v.  Hendrix  338 

Saunders  v.  Mills  53 

V.  Wakefield  268 

Saunderson  v.  Jacksoa  268 

V.  Judge  40 

V.  Piper  297 

Sauniere  v.  Wode  113 

Savage  v.  Balch  180 

V.  Smith  59 


Section 

Savignac  v.  Garrison 

49 

Sawyer  v.  Baldwin 

484 

V.  Eilert 

55 

In  re 

222 

V.  Maine  Fire  &  Marine 

Ins.  Co.  541 

Saxton  V.  Johnston  58 

V.  Nimms  484 

Sayer  v.  AVagstaff  438 

Sayles  i'.  Briggs  608 

Sayre  v.  Reynolds  564 

Say  ward  v.  Stevens  281 

Scales  V.  Jacob  113 

Scammon  v.  Scammon       1C8,  190,  314 

Scanlan  v.  Wriglit  571 

Schaclier  v.  Kreitzer  510 

Schall  V.  Miller  167 

8cliaul)er  v.  Jackson  46,  47 

Schermerhorn  v.  Schermerhorn        356 

Schillinger  v.  McCann        26,  420,  421 

Schinotti  v.  Bumstead  474 

Schmidt  V.  New  York,  &c.,  Ins.  Co.  55 

Schnablc  v.  Koeliler  409 

Schnertznell  v.  Young  606 

Schretier  t".  State  225 

Schooner  Reeside  292 

Sclu-eger  v.  Garden  205 

Schucliardt  v.  Aliens  51  a 

Scorell  V.  Boxall  271 

Scoresby  v.  Sparrow  349 

Scott  V.  Blanchard  605 

V.  Brigham  118 

V.  Burton  284 

V.  Clare  86,  96,  203 

V.  Cleveland  505 

V.  Hooper  370 

V.  Hull  75,  76 

V.  Jones  89 

V.  Lillbrd  426 

V.  Llovd  354,  385 

V.  Marshall  180 

V.  McLellan  391,  399,  401 

V.  Pilkington  546  b 

V.  Waithman  207,  571 

V.  Wells  416 

Scovill  V.  Baldwin  37 

Scraggs  V.  The  State  104 

Scribner  v.  McLaughlin  421 

Scrimshire  v.  Scrimshire  545 

Seaman  v.  Ilogeljoom  287 

Searight  v.  Craighead  112 

Searle  v.  Ld.  Barrington  122 

Sears  v.  Brink  268 

V.  Dilhngham  347 

Seaver  v.  Bradley  392 

V.  Robinson  318 

Seavy  v.  Dearborn  436,  443 

Sebree  v.  Dorr  84,  87 

Seddon  t\  Tutop  532 


INDEX  TO    CASES   CITED. 


Ixi 


Sedgwick  v.  Walkins 
Sec'ki-iglit  V.  Bogan 
Selby  V.  Hills 
Solilon  V.  Williams 
Self'e  V.  Isaacson 
Sells  V.  lloare 
Sehvood  v.  Mildway 
Sehvyn's  case 
Senior  v.  Arm}i;age 
Serchor  v.  Talbot 
Sergeson  v.  Sealey 
Serle  v.  Serle 
Settle  V.  Allison 
Sewell  V.  Evans 
V.  Stubbs 
Seymour  v.  Beach 

V.  Delancy 
Seymour's  case 
Shack  V.  Anthony 
Shafer  v.  Stonebreaker 
Shaller  v.  Brand 


Section 

340,  343 

319 

31G 

295 

432 

371 

289 

30 

294 

69 

556 

397 

21,  506 

575 

95,  97,  422 

519 

284 

84 

303 

531 

144 


Shambm-g  v.  Commagere  885 

Shankland  v.  City  of  Washington   281 

Shankwiker  v.  Reading  322 

Shannon  v.  Commonwealth  423 

Sharp  V.  Sharp  488  a 

Shai'pe  V.  Bingley  437 

V.  Lanibe  560 

V.  Sharpe  581 

Shaw  V.  Broom  190 

V.  Charlestown  440 

V.  Emery  461 

Sheafe  v.  Rowe  440 

Shean  v.  Philips  239  a 

Shearman  v.  Aikens  116,  120,  147 

Shedden  v.  Patrick     104  a,  133,  469  a 

Sheehy  v.  Mandeville  69,  539  a 

Sheen  v.  Bumpstead  .  101  a 

Sheffield  v.  Page  284  a 

Shelby  v.  Smith  420 

V.  The  Governor,  &c.  187 

V.  Wright  23,  26 

Shelb}^ine  v.  Shelbyville  40 

Sheldon  v.  Benham  116,  280 

V.  Clark  79 

Shelling  v.  Farmer  474 

Shelly  V.  AVright  531  a 

Shelton  v.  Barbour  164 

V.  Cocke  112 

Shelton  v.  Deering  568  a 

V.  Livius  271 

Shepard  v.  Palmer  416 

Shepherd  v.  Chewter  212 

V.  Currie     .  38 

V.  Little  26 

V.  Thompson  145 

Sherburne  v.  Shaw  268 

Sheridan  v.  Kirwin's  case  90 

Sheriff  V.  Wilkes  174 


Section 

Sherman  v.  Akins  120 

V.  Barnes  396 

V.  Crosby   116,  120,  147,  152 

V.  Sherman  197 

Sherrington's  case  221 

Sherwood  v.  Burr  17 

Shields  v.  Boucher  103 

Shires  v.  Glasscock  272 

Shirley  v.  Shirley  268 

V.  Todd  190 

Shoenberger  v.  Zook  304 

Shoenbergher  v.  Hackman  82 

Shore  v.  Bedford  239,  243,  245 

Shorey  v.  Hussey  *  443 

Short  V.  Lee      83,  115,  147,  119,  153, 

154,  155 

V.  Mercier  451 

Shortz  V.  Unangst  558 

Shott  V.  Streatheld  101 

Shotter  v.  Friend  260  a 

Shown  V.  Barr  506 
Shrewsbury  (Carpenters  of) 

V.  Hayward  405 

Shrewsbury  Peerage  105,  106 

Shrouders  v.  Harper  558 

Shumway  v.  Holbrook  518 

V.  Stillman  548 

Shuttleworth  v.  Bravo  392 

Sibley  v.  Waffle  239 

Sidney's  case  5"76 

Silk  V.  Humphreys  81 

Sillick  f.  Booth  30,  41 

Sills  V.  Brown  440,  537,  553 

Silver  Lake  Bank  v.  Harding  505 

Simmonds,  la  re  272 

Simmons  v.  Bradford  27 

V.  Simmons  257,  381 

Simpson  v.  Dendy  53  a 

V.  Fogo  54-6  &,  546  e 

V.  M:u-gitson  49,  277 

V.  Morrison  112 

V.  Norton  509 

V.  Stackhouse  564 

V.  Thoreton  479,  558 

Sims  V.  Ivitchen  314 

V.  Sims  558 

Sinclair  v.  Baggaley  121 

V.  Fraser  546 

V.  Sinclair  54:5 

V.  Stephenson  275,  284,  437.* 

466,  560 

Singleton  w.' Barrett  90,97 

Sisk  v.  Woodruff  4.^9 

Sissons  V.  Dixon  35 

Skaife  v.  Jackson     172,  173,  174,  211 

Skilbeck  v.  Garbett  40 

Skinner  v.  Perot  374 

Skipp  V.  Hooke  5 

Skipworth  i\  Greene  26 


/ 


Ixii 


INDEX  TO   CASES   CITED. 


Slack  V.  Buchannan 

V.  Moss 
Slade  V.  Teasdale 
Sladden  v.  Sergeant 
Slant  Peerage  (The) 
Slaney  v.  Wade 
Slater  v.  Hodgson 

V.  Lawson 
Slatterie  v.  Poolev 


Section 

.•1!)2 

o8a 

118 

463 

10-i 

104,  i;}4 

570 

174,  17G 

96,  96  a,  20;{ 


Slaymaker  v.  Gnndacker's  Exi".       176 

V.  Wilson  577 

Sleeper  v.  Van  Middleswortli  4;il 

Sleght  v.  Ivhinelauder  2,S0 

Sloan  V.  Souiers  165,  IGG 

Sloman  v.  Heme  180,  181 

Sluby  V.  Chaniplin  572,  575 

Small  r.  Leonard  5;J2 

Sniallcorabe  v.  Bruges  181 

Smart  v.  Rayner  75 

Smiley  v.  Dewey  349 

Smith  V.  Arnold'  268 

V.  Barker  68 

V.  Battens  121 

V.  Beadnell  193 

V.  Bell  287 

V.  Blackhani  390 

V.  Blagge  506 

V.  Blandy  201 

V.  Brandram  73 

V.  Brown  305 

V.  Buruham  200,  214 

V.  Castles  323,  457 

r.  Chambers  392 

V.  Coffin  369,  370 

•  V.  Cramer  108 

V.  Crocker  567,  568 

V.  Cutter  456  a 

V.  Davies  81 

V.  De  Wruitz  190 

V.  Downs  387,  388 

V.  Dunbar  568 

V.  Dunham  568 

V.  Fell  239 

V.  Feuner                '  581 

V.  Gugerty  440 

V.  Hyndman  55 

V.  Jeffreys  281 

V.  Jeffries  79 

r.  Knowelden  73 

V.  Knowlton  41,  540 

V.  Lane  437 

V.  Ludlow  112 

V.  Lyon  180 

V.  Martin  109 

V.  Moore  78 

V.  Morgan  179,  436,  469 

V.  Nicolls  546  /( 

V.  Nowells  145 

V.  Palmer  96,  96  a,  203 


Smith  V.  People 
V.  Potter 
V.  Powers 
V.  Prager 
V.  Prcwitt 
V.  Price 
V.  Prickett 
V.  Kedden 
V.  Sanibrd 
V.  Scudder 
V.  Simmes 
V.  Sleap 
V.  Smith 
V.  Sparrow 
V.  State 
V.  Stiekney 
V.  Surnian 
V.  Taylor 
V.  Thompson 
V.  Vincent 
I'.  Wliitaker 
V.  Whittingham 
V.  Wilson 
V.  Young 
Smith's  case 
Smytlie  v.  Banks 
Snell  V.  Moses 

V.  Westport 
Snellgrove  v.  Martin 
Snow  V.  Batchelder 


Section 

462 

253  o,  480 

109,  145 

386,  409 

145 

442,  444 

465 

513 

117,  334 

185 

180 

560 

38,  107,  189 

351,  421 

158 

469 

271 

63,  195 

300 

176 

488  a 

187 

49,  280,  292 

90,  560 

235 

316 

58 

329 

,      109,  190 

75,  192,  421 


V.  Eastern  Railroad  Co.  348 

Snowball  v.  Goodricke  180 

Snyder  v.  Nations  366 
V.  Snyder               334,  341,  434 

Society,  &c.  v.  Wheeler  19 

V.  Young  46 

Solaman  v.  Cohen  320 

Solarete  v.  Melville  388 

Solita  V.  Yarrow  578 

Solomon  v.  Solomon  206 
Solomons  v.  Bank  of  England        81  a 

Somes  V.  Skinner  24 

Soulden  v.  Van  Rensselaer  430 

Soule's  case  343 
Southanipton  (Mayor  of) 

V.  (J raves  474 

Southard  v.  Rexford  451 

V.  Wilson  401,  422,  426 

Southcy  V.  Nash  432 

Southwick  V.  Stevens  36,  89,  234 

V.  Hapgood  281 

Souvereye  v.  Ardcn  361 

Soward  v.  Leggatt  74,  81 

Sowell  V.  Champion  358 

Spangle  v.  Jacoby  491 

Spargo  V.  Brown       116,  120,  147,  171 

S^jarhawk  v.  Bullard  38 

Spaulding  v.  Hood  74,  75 

V.  Vincent  488 


INDEX   TO   CASES   CITED, 


Sf-otion 

Section 

Spear  r.  Eichardson 

43-trt 

State  (The)  v.  Cameron 

156,  101 

ISpears  i'.  Forrest 
V.  Ohio 

462 

V.  Candler 

376 

219 

V.  Carr 

489,  581 

Speer  v.  Coate 

145 

V.  Coatney 

','A\) 

Spence  v.  Chodwick 

48S 

V.  Colwell 

436 

V.  Saunders 

118 

V.  Cowan 

220 

V.  Stewart 

317 

V.  Croteau 

49 

Spenceley  v.  DeWillott 

449,  455 

V.  Crowell 

79 

Speneer  v.  Billinp; 

93 

V.  Davidson 

175 

i\  (iouldiiig 

416 

V.  Davis 

343,  462 

V.  Roper 

41 

V.  De  Wolf 

366 

V.  William 

521 

V.  Dill 

319 

Spicer  V.  Cooper 

280 

V.  Dunwell 

(> 

Spiers  V.  Clay 

26 

V.  Ferguson 

160 

V.  Morris 

120 

V.  Foster 

362 

V.  Parker 

19,  78 

V.  Freeman 

220,  252  a 

V.  Willison 

87 

V.  Grant 

219 

Spraguc  V.  Cadwell 

462 

».  Harman 

219 

V.  Litherberry 

19 

V.  Hayward 

257 

V.  Oakes 

532 

V.  Hinchmau 

513,  540 

Spring  Garden  Ins.  Co.  v.  Riley      438 

V.  Hooker 

165 

Spring  V.  Lovett 

281 

V.  Howard 

103,  160 

Springstein  v.  Field 

55 

V.  Isham 

502 

Sprowl  V.  LaAvrence 

5 

V.  Jolly 

337 

Spurr  V.  Pearson 

389 

v.K 

451 

V.  Trimble 

41 

V.  Kirby 

223 

Stables  V.  Eley 

208 

V.  Lewis 

20 

Stackpole  v.  Arnold  212,  275 

281,  305 

V.  Littlefield 

171,  195 

Stacy  V.  Blake 

179 

V.  Lull 

436 

Statibrd  v.  Clark 

531,  532 

V.  Mahon 

218 

V.  Riee 

385 

V.  McAlister 

51  a,  306 

Staiford's  (Ld.)  case 

235,  255 

V.  McDonnell 

34 

Stafford  Bank  v.  Cornell 

416 

V.  Molier 

257 

Stainer  v.  Droitwiteh 

497 

V.  Morrison 

79 

Stall  V.  CatskiU  Bank 

387,  430 

V.  NeiU 

344 

Stammers  v.  Dixon 

293 

V.  Norris 

444 

Stamper  v.  GrilHn 

463 

V.  O'Connor 

481 

Standage  v.  Creighton 

186 

V.  Parish 

227 

Standen  v.  Standen 

301 

i).  Patterson 

449,  456 

Stanley  v.  White 

147,  197 

V.  Peace 

156 

Stanslield  v.  Levy 

76 

V.  Pettaway 

344 

Stanton  v.  AVilson 

334 

V.  Pierce 

49 

Staples  V.  Goodrich 

532 

V,  Poll 

158,  160 

Stapleton  v.  Nowell 

205 

V.  Powers 

6 

Stapylton  v.  Clough            99 

116,  120 

V.  Rawls 

199,  437 

Stark  V.  Boswell 

199 

V.  Ridgely 

375,  376 

Starkey  v.  People 

161  a 

V.  Roberts 

221 

Starks  v.  The  People 

469 

V.  Rood 

488 

Starkweather  v.  Loomis 

505 

V.  Rowe 

469 

V.  Matthews 

420 

V.  Sater 

461 

State  (The)  v.  Adams 

34 

V.  Shearer 

79 

V.  Allen 

580,  581 

V.  Shellidy 

108 

V.  Bailey 

457 

V.  Shelton 

156 

V.  Bartlett 

513 

V.  Simmons 

414 

V.  Boswell 

461 

V.  Snow 

49 

V.  Brookshire 

432 

V.  Soper 

233 

V.  Broughton 

225 

V.  Sparrow 

432 

V.  Burlingham 

335 

V.  Stade 

489.  505 

».  Caffey 

70 

V.  Stanton 

414 

Ixiv 


INDEX   TO    CASES   CITED. 


State  (The)  v.  Stinson 
V.  Tliilieau 


Tlioinason 

Vaigiieur 

Vitiuin 

Wi'ntworth 

AVhisciihurst 

WliittiiT 

Williams 

\Vorthinor 


St.  Clair  v.  Shale 
Stoad  V.  Heatou 
Stearns  v.  Hall 

V.  Hendersass 
V.  Stearns 
Stebbing  v.  Spicer 
Stebbins  v.  Sackett 
Steed  V.  Oliver 
Steel  V  Priekctt 
Steele  v.  Smith 
V.  Stewart 
V.  Worthington 
Steers  v.  Cawardiue 
Stein  V.  Bowman 

V.  Weidinan 
Steinkellen  v.  Newlon 
Steininetz  v.  Currie 
Stei)hen  v.  State 
Stephens  v.  Foster 
V.  Vroman 
V.  Winn 
Stephenson  v.  Bannister 
Sterling  v.  Potts 
Sterrett  v.  Bull 
Stevens  v.  McNamara 
V.  Pinnay 
V.  Tail 
V.  Thacker 
Stevenson  v.  Mudgett 
V.  Nevinson 
Stewart  v.  Alison 
V.  Canty 
V.  Doughty 
V.  Huntington  Bank 
V.  Kipp 
V.  Saybrook 
Stewartson  v.  Watts 
St.  Georjre  v.  St.  Margaret 


Section 

8  70 

233 

1.57 

221 

372 

342 

229 

371 

367 

G 

335,  3G3 

109 

150 

302,  30-4 

109 

528 

38 

422,  423 

361 

130 

548 

239 

26 

397 

19,  334,  337 

253  a 

88,  438 

430 

5 

466 

96  a,  200 

2G8 


506 

558 

117 

41 

89 

20 

184 

429 

505 

498 

49 

271 

332 

392,  409 

331 

113 

28,  40 


Stiles  V.  The  Western  Railroad 

Co.  110,  113 

Still  V.  Hoste  289 

Stinnnel  i\  Underwood  387,  388 

St.  Marv's  College  v.  Attorney- 
General  46 
Stobart  v.  Dryden  156 
Stoekbridge  v.  W.  Stockbridge  _  21 
Stockdale  v.  Hansard  '  6 
V.  Younir                            558 


Section 

Stockfleth  V.  De  Tastet  193 

Stockliam  v.  Jones  358 

Stockton  V.  Dennith  113,  442,  443 

Stoddard  v.  Palmer  56 

Stoddart  v.  Palmer  70 

V.  Manning  452 

Stoever  v.  Whitman  280 

Stokes  V.  Dawes          •  104,  556 

V.  Stokes  115,  147 

Stonard  v.  Dunkin  207 

Stone  V.  Bibb  356 

V.  Blackburne  421 

V.  Clark  293,  301 

V.  Crocker  471 

V.  Forsvth  618 

V.  Hubbard  280 

V.  Knowlton  56,  68 

V.  Metcalf  283 

v.. Ramsay  200 

V.  Vance  385 

V.  Varney  55 

Stoner's  appeal  287 

Stoner  v.  Byron  364,  386 

V.  Ellis  485 

Stoop's  case  346 

Storer  v.  Batson  266 

V.  Elliot  Fire  Ins.  Co.  288 

V.  Freeman  288 

Storey  v.  Lovett  569 

Storr  et  al.  v.  Scott  196 

V.  Finnis  205 

Story  v.  Kimball  613 

V.  Watson  73 

Stoulfer  V.  Latshaw  284 

Stout  V.  Russell  457 

V.  Wood  421 

Stowell  V.  Robinson  302 

Strakcr  v.  Graham  252  a 

Stralding  v.  Morgan  293 

Strange  v.  Dashwood  572 

Stranger  v.  Searle  577 

Straton  v.  Rastall  207,  212,  305 

Streeter  v.  Bartlett  569 

Strickler  v.  Todd  17 

Strode  V.  Winchester         *       147,  266 

Strong  V.  Bradley  513 

Strother  r.  Barr  87,  96 

Strutt  V.  Bovingdon  531 

Studdy  V.  Sanders  210,  507 

Stukeley  v.  Butler  60,  301 

Stump  V.  Napier  385 

Sturd}-  V.  Arnaud  3(J3 

■  Sturge  V.  Buchanan  116,  201 

Summers  v.  Moseley  445 

Summersett  v.  Adamson  203 

Sumner  v.  Child  17 

».  Sel)ec  484 

V.  Williams  101 

Sussex  (Earl  of)  v.  Temple  189 


INDEX   TO   CASES   CITED. 


Ixv 


Section 

Section 

Sussex  Peerage  case 

99, 

104,  147 

Taylor  V.  Luther 

3»5 

Siittou  V.  Bishop 

413 

V.  Moseley 

564 

V.  Kettell 

305 

V.  Ross 

268 

V.  Sadler 

42 

V.  Sayrc 

281 

Suydam  v.  Joues 

302 

V.  Tucker 

118 

Swain  v.  Lewis 

561 

V.  Weld 

284 

Swallow  V.  Beaumont 

58,  66,  68 

V.  Willans                49, 

101,  186 

Sweet  V.  Lee 

282,  299 

Teal  V.  Auty 

271 

V.  Sherman 

469 

Teall  V.  Van  Wyck 

572 

Sweigart  v.  Berk 

529 

Teese  v.  Huntington 

2 

Swift  V.  Bennett 

116 

Tempest  v.  Kilner 

267 

V.  Dean 

421 

Tenbrook  v.  Johnson 

118 

V.  Eyres 

301 

Tennant  v.  Hamilton 

449 

v.  Stevens 

558 

V.  Strachan 

392 

Swing  V.  Sparks 

118 

Tennessee  (Bank  of)  v.  Cowan       115 

Swinnerton  v.  Marquis 

of  Staf- 

Tenny  v.  Evans 

179 

lord 

21, 

142,  485 

Terrill  v.  Beecher 

118 

Swii-e  V.  Bell 

572 

Terrett  v.  Taylor                  23 

,  24,  331 

Sybra  v.  AVhite 

183 

Terry  v.  Belcher 

337 

Syers  v.  Jonas 

293 

Tewicsbury  v.  Bricknell 

72 

Sykes  v.  Dun'bar 

252 

Texira  v.  Evans 

568  a 

Sylvester  v.  Crapo 

190 

Thallhimer  v.  BrinekerhofF 

113 

Symmons  v.  Knox 

60 

Thayer  v.  Grossman 

385,  401 

Symonds  v.  Carr 

66 

V.  Stearns 

484 

V.  Lloyd 

292 

Theakston  v.  Marson 
Thelluson  v.  Gosling 
Theobald  v.  Tregott 

260  a 

491 

416,  417 

Thomas  &  Henry  v.  U.  States         323 

T. 

Thomas  Jefferson  (The) 
Thomas  v.  Ainsley 

6 

96 

Talbot  V.  Clark 

521 

V.  Cummins 

319 

V.  Seeman 

487,  491 

V.  David 

432,  450 

Tallman  ii.  Dutcher 

421,  426 

V.  Dyott 

118 

Tams  V.  Bullitt 

.   51  a 

V.  Gi'aves 

260  a 

Taney  v.  Kemp 

452 

V.  Hargrave 

841 

Tanner  v.  Taylor 

437 

V.  Jenkins 

139 

Tannett's  ease 

65 

V.  Ketteriche 

550 

Taplin  V.  Atty 

560 

V.  Xewton 

451 

Tappan  v.  Abl)ott 

197  a 

V.  Robinson 

505 

Tarleton  v.  Tarleton 

543 

V.  Tanner 

506 

Taunton  Bank  v.  Richardson 

349 

V.  Thomas            197, 

289,  291 

Tawney  v.  Crowther 

268 

V.  Turuley 

575 

Tayloe  v.  Biggs 

82,  349 

Thomas's  case 

228 

Taylor  t\  Bank  of  Alexandria          4S9 

Thompson  v.  Armstrong 

389 

V.  Bank  uf  Illinois 

489 

V.  Austen 

192,  201 

V.  Barclay 

4. 

5,  6,  6  a 

V.  Bullock 

144 

Vi  Beck 

385 

V.  Davenport 

196 

V.  Blacklow 

240 

V.  Donaldson 

550 

V.  Briggs 

278, 

279,  292 

V.  Freeman 

102,  ;'.4i 

V.  Brytlen 

548 

V.  Ketchum 

2b  1 

V.  Cook 

139 

r.  Lockwood 

284 

V.  Croker 

196,  207 

V.  MOUTOW 

488  a 

V.  Diplock 

30 

V.  ISIusser 

489 

V.  Dundass 

521 

V.  Roberts 

531 

V.  Foster 

186,  239 

V.  Stevens 

120,  152 

V.  Henry 

484 

V.  Stewart 

5,  514 

In  re 

107,  108 

V.  Travis 

55S 

V.  Johnson 

565 

Thompson's  case 

220 

V.  Lawson 

432 

Thorndike  v.  Boston 

108 

Ixvi 


INDEX  TO    CASES   CITED. 


Section 

i 

Section 

Thorndike  v.  Kicliartls 

301 

Trelawney  v.  Coleman 

102 

Thorn es  v.  White 

310 

V.  Thomas 

387 

Thornton  v.  Bhiisilcll 

256 

Tremain  v.  Barrett 

310 

V.  floiU'S 

66 

V.  Edwards 

118 

r.  Koyal  Ex.  Ass. 

Co. 

440 

Trevivan  v.  Lawrence 

23 

,  531 

('.  ^\'vkt'S 

69 

Tripp  V.  Gery 

86 

Thorntoirs  case 

220 

222 

Trisehct  v.  Ilamilton  Ins.  Co 

463 

Thorpe  v.  Barber 

357 

Trotter  v.  Mills 

502 

V.  Cooper 

532 

Trowbridge  v.  Baker 

195 

V.  (iisliurne 

577 

Trowell  v.  Castle 

511 

,  564 

Thron-morton  v.  Walton 

41,  81 

Trowter's  case 

161 

Thurnian  v.  Cameron 

573 

Truslove  v.  Burton 

186 

Thurston  v.  Mastersou 

21 

Trustees,  &c,  v.  Bledsoe 

114 

V.  Whitney 

369 

V.  Pcaslee 

290 

,  291 

Tibeau  v.  Tibeau 

5m 

Trustees  Ep.  Ch.  Newbern 

Tickel  V.  Short 

194 

V.  Trustees  Newbern  Acad 

21 

Tiernan  v.  Jackson 

172 

Truwhitt  v.  Lambert 

89 

Tiley  v.  Cowlino^ 

195 

527 

Tucker  v.  Barrow 

193 

Tiliihman  v.  Fisher 

196 

V.  Maxwell 

212 

,  305 

Tillotson  V.  Warner          501 

508 

509 

V.  Peaslee 

51  a 

Tillson  V.  Smith 

296  rt 

V.  State 

6 

Tillon  V.  Clinton,  &c.  Ins.  Cc 

. 

564 

V.  Tucker 

75 

Tindall,  Jn  re 

41 

V.  Welsh 

89 

Tinkham  v.  Arnold 

17 

Tufls  V.  Haves 

207 

Tinkler  v.  Walpole 

494 

TuUis  V.  Kidd 

440 

Tinkler's  case 

157 

158 

Tullock  V.  Dunn 

176 

Titford  V.  Knott 

581 

Turner  v.  Austin 

394 

Title  V.  Grevett 

384 

V.  Coe 

421 

Titus  V.  Ash 

66, 

462 

V.  Crisp 

121 

Tison  V.  Smitli 

G  a 

V.  Eyles 

56 

Tobin  V.  Shaw 

558 

V.  Lazarus 

356 

Tod  V.  Earl  of  Winchelsea 

163, 

272 

V.  Pearte 

421 

V.  Stafford 

385 

V.  Twing 

118 

Tolman  v.  Emerson 

142, 

144 

V.  Waddington 

506 

Tomkies  v.  Reynolds 

108 

V.  Yates 

182 

560 

Tomlinson  v.  Borst 

118 

Turney  v.  The  State 

434 

Tompkins  v.  Ashl)y 

551 

Turquand  v.  Knight 

239 

V.  Attor. -General 

484 

Tuttle  V.  Brown 

113 

V.  Curtis 

430 

Tutton  V.  Drake 

497 

V.  Phillips 

207 

Tuzzle  V.  Barclay 

51  a 

V.  Saltmarsh 

108 

Twambly  v.  Henley 

384 

397 

Tong's  case 

233 

Twiss  V.  Baldwin 

60,  64 

Tooker  v.  D.  of  Beaufort 

6 

Tyler  v.  Carlton 

26 

Toi»ham  v.  ^McGregor 

437 

V.  Ulmer                   180, 

394 

539 

Tousley  v.  Barry 

190 

V.  Wilkinson 

17 

Towle  V.  Blake 

118 

Tyer's  case 

65 

Town  t;.  Needham 

421 

Townley  v.  Wo(jlley 

118 

Towns  1!.  Alfbrd 

435 

U. 

Townsend  v.  Bush 

379, 

385 

V.  Downing 

391, 

395 

Ulen  V.  Kittredge 

269 

V.  Graves 

54 

Ulmer  v.  Leland 

78 

V.  The  State 

49 

Underbill  v.  AVilson 

180 

V.  Weld 

281 

Underwood  v.  Wing 

30 

Tracy  v.  Peerage 

581 

Union  Bank  v.  Knapp      118, 

168, 

368, 

Trant's  case 

IGO 

474 

Travis  v.  January 

246 

V.  Owen 

430 

Treat  v.  Strieklund 

109 

Unis  V.  Charlton's  Adm'r 

462 

Tregany  v.  Fletcher 

6 

United  States  v.  Amedy 

489 

INDEX   TO   CASES   CITED. 


Ixvil 


Section 

United  States  v.  Batiste  4<J,  07 

V.  I'l'iiner  479 

V.  P.iHH'd  2<sO 

V.  IJritton  Go,  >H 

V.  I'.uiord  73,  4'J8 

V.  Ikinis  5,  G 

V.  CantriU  300 

V.  Castro     142,  143,  485 
V.  Chapinau  221 

V.  Ciishman  oo9  a 

V.  Edinu  316 

V.  Gibt-rt       84,  233,  495 
V.  Gooding  233 

V.  Hail-  iViicils  241 

V.  Hanwav  256 

V.  Havwal-d  79,  80 

V.  Johns  4,  485,  489 

V.  King  5,  6 

V.  Leffler  284,  385 

V.  Macomb  164,  165 

V.  MoNoal  65,  70 

V.  Mitchell  479 

V.  Moore  311 

V.  Moses  250 

V.  Murphy  350,  412 

V.  Nelson  368  a 

V.  Nott  219 

V.  Palmer  4 

t'.  Perchemau  485 

V.  Porter  -      Go 

V.  Keyburn       82,  83,  92 
V.  Revnes  6 

V.  Sniith  430 

V.  Spauldiug  566 

V.  Sutter  84 

V.  Teschmaker  6  a 

V.  Turner  6 

V.  Wilson  412 

V.  Wood      165,  257,  258 
U.  States  Bank  v.  Corcoran  2 

V.  Dandridge  21 

V.  Dunn  40,  83 

V.  Glass  Ware         385 
V.  Johnson  489 

V.  La  Vengeance         6 
V.  Stearns  416 

Utica  (Bk.  of)  t-.  llillard        385,  474, 

559 

V.  Mersereau  240, 

243,  422 

V.  Smalley  430 

Utica  Ins.  Co.  v.  Cadweli  430 


Vail  V.  Smith 

V.  Strong 
Vaillant  r.  Dodcmead 
Vaisu  V.  Dclaval 
Valentine  v.  Piper 
Vallancc  v.  Dewar 


Section 
501 

197  a 
243,  248 

252  a 
575 
292 


Vacher  v.  Cocks 
Vail  V.  Lewis 

V.  Nickerson 


108 

60 

371 


Valton  V.  National  Loan,  &c.  Soc.  322 

Van  Burcn  v.  Cockburn  165 

V.  AVclls  51  a 

Vanl)uskirk  c.  Mullock  489 

Vance  v.  Reardon  501 

V.  Schuyler  573 

VandenheuvcfiJ.  U.  Ins.  Co.  543 

Vandcrwerkcr  r.  The  People  6 

Van  Deusen  v.  Frink  429 

V.  Slyck  358 

Vandine  v.  Burpee  440 

Van  Dyke  v.  Van  Buren  46 

Vane's  (Sir  Henry)  case  256 

Vanhorne  v.  Don-ance  564 

Van  Ness  v.  Packard  2 

Van  Nuys  v.  Terhune  389 

Van  Omeron  v.  Dowick  40,  479 

Vanquelin  v.  Bonard  546  g 
Van  lieinisdvk  i-.Mvane    112,  174,  177, 

178 

Van  Sandau  v.  Turner  6 

Van  Shaack  v.  Stailbrd  427 

Van  Valkenburg  v.  Rouk  284 

A"an  Vechten  v.  Greves  173 

Van  Wyck  v.  McLitosh  678 

Vanzant  v.  Kay  395 
Vass's  case                              160,  161  a 

Vasse  V.  Mifflin  559 

Vau  V.  Corpe  361 

Vaughan  v.  Fitzgerald  552 

V.  Hann  214 

V.  Martin  438 

V.  AVorrall  421 

Vaughn  v.  Perrine  458 

Vaux  Peerage  case  (The)  497 

Vcdder  v.  Wilkins  558 

Venning  v.  Shuttleworth  399 

Vent  V.  Pacey  240  a 

Verry  v.  Watkins  54 

Vicary  t'.  Moore  303 

Vicary's  case  1T4 

Villiel-s  V.  Villiers  84 
Viual  V.  Burrill                     87,  112,  356 

Vincent  v.  Cole  88,  304 

Viney  v.  Bass  52 

Viuniconibe  v.  Butler  20  a 

Violet  V.  Patton  268 

Voce  i\  Lawrence  322 

A^olant  V.  Soyer  246 

Vooght  V.  Winch  531 

Vosburg  V.  Thayer  118 

Vose  r.  Handy  3<H 

V.  Morton  623,  528 


Ixviii 


INDEX   TO    CASES   CITED. 


Vowels  V.  Miller 
V.  Younsc 


Section 

6U,  72 

103,  105,  334,  342 


W. 

Waddington  v.  Bristow  278,  578 
V.  Cousins  573,  680 
:\Vadley  v.  Bayliss  203 
Walor  V.  Ik'mi)kin  1G8 
AVajrcrs  i-.  Difkey  1G5 
Waggoner  i'.  Rielnnond  118 
WagstalFr.  Wilson  186 
Wain  V.  Warlters  2G8 
Waite  V.  ]\Ierrill  427 
Wake  V.  Hartop  284  a 
V.  Lock                   396,  421,  426 
AVakefiekl  v.  Ross              328,  339,  369 
AVakefield^s  case                 339,  343,  374 
Wakeley  v.  Hart  358 
Walden  v.  Canlield  ^6 
V.  Craig  73 
V.  Slierburue  112 
Waldridge  v.  Kenison  192 
Waldi-on  v.  Tuttle     •  130 
V.  Ward  243 
Walker  v.  Broadstock  109,  189 
V.  Countess  of  Beau- 
champ  131 
V.  Dunspaugh  435 
V.  Ferrin  427 
V.  Giles  409 
V.  Hunter  49 
V.  Kearney  374 
V.  Frcjtection  Ins.  Co.  440 
V.  Sawyer  425 
V.  Ste})lienson       •  54 
V.  Walker  165 
■  v.  Welch  66 
V.  Wheatley  302 
V.  Wildman  237,  240 
V.  Wingfield  485 
V.  Witter  546 
Walker's  case  189 
Wall  V.  IMcXamara  532 
Wallace  v.  Cook  484,  493 
V.  Rogers  305  a 
V.  Small  192 
r.  Twvman  420 
Wallisw   LitteU  284  « 
v.  Murray  559 
AValsinghani  (Ld.)  v.  Good- 

ricke  240  a,  244 

Walter  v.  BoUman  117 

V.  Haynes  40 

Walters  v.  Mace  64 

V.  Rees  317 

V.  Short  564 

Walton  V.  Coulson  21 


Walton  «.  Green 
V.  Shelley 
V.  Tomlin 
V.  Walton 
Wambough  v.  Shenk 
AVandless  v.  Cawthorne 
Ward  V.  Apprice 

V.  Hay  don 

V.  Howell 

V.  Johnson 

V.  Lewis 

V.  Romfret 

V.  Sharp 

V.  The  State 

V.  Wells 

V.  Wilkinson 
Warde  v.  Warde 
Wardell  v.  Eden 

V.  Fennor 
Wardle's  case 
Ware  v.  Brookhouse 


Section 

110,  185,  341 

383,  385,  389 

356 

260 

41 

95,  422 

349 

357 

112 

539 

38 

155 

452 

161  a 

572 

398 

241 

173 

572 

65 

109 


V.  Havward  Rubber  Co.  292 

V.  Ware  52,  77,  449,  462 

Waring  v.  Waring  365 

Warner  v.  Harder  485 

V.  Price  116,  120 

Warren  v.  Anderson  575 

V.  Charlestown  331 

V.  Comings  531,  532 

V.  Flagg  505 

V.  GreenviUe  119,  147,  149, 

150,  154 

V.  Lusk  488  a 

V.  Kichols  165 

V.  Wiivrcn  40 

V.  Wheeler  277 

WarrickshaU's  case   214,  215,  219,  231 

Warriner  v.  Giles  484 

^\"arrington  v.  Early  568 

Warwick  v.  Bruce  271 

V.  Foulkes  53 

Wasliburn  v.  Cuddiiiy  497 

Washington  S.F.  Co.  v.  Sickles       532 

Waterman  v.  Johnson  288,  301 

Watertown  v.  Cowen  175 

Watkins  v.  Holman  479,  480,  482 

V.  Morgan  73 

I'.  Towers  27 

Watson  V.  Blaine  26 

V.  Brewster  104 

V.  England  41 

V.  Hay  6 

V.  King  41,  186 

V.  Lane  207 

V.  McLaren  430 

V.  Moore  55,  201 

V.  Tarjiley  49 

V.  Tlu-elkeld  27,  207 

V.  Wace  204,  207 


INDEX  TO    CASES   CITED. 


Ixix 


Section 

Watts  V.  Friend  271 

v.  Howard  liy 

r.  Kill)urii  672 

V.  Lawsoii  192 

V.  Thorpe  181 

Waugh  V.  Bussell  G9,  567 

Wayman  v.  llillard  192 

Wavmell  v.  Head  284,  48« 

Weakly  v.  Bell  207 

Weall  V.  King  58,  64 

Weaver  v.  MeElhenon  6 

Webb  V.  Alexander  513 

V.  Man.  &  Leeds  R.R.  Co.    440 

V.  Page  310 

V.  Smith  179,  248 

V.  St.  Lawrence  575 

Webber  v.  Eastern  Railroad  Co.      540 

Webster  r.  Clark  118,430 

V.  Hodgkius  89,  282 

V.  Lee  447,  532 

V.  Vickers  385 

V.  Webster  115 

V.  Woodford  284 

Wedge  V.  Berkeley  49 

Wedgewood's  case  484,  493 

Weed  V.  Kellogg  180,  322 

Weeks  v.  Lowerre  163 

V.  Sparke     128,  129,  130,  13G, 

137,  138,  145,  146 

Weems  v.  Disney  145 

Weguelin  v.  Weguelin  321 

WeidmaniJ.  Kohr_  109,189 

Weidner  v.  Schweigart  38 

Weigly  V.  Weir  26 

Welborn's  case  158,  160 

Welch  V.  Barrett  115,  116,  147 

I'.  ]Mandeville  173 

V.  Seaborn  38 

Weld  V.  Kichols  539 

Welden  v.  Buck  423 

Welford  I'.  Beezely  268 

Welland  Canal  Co.  v.  Hathaway      86, 

96  a,  203,  204 

Wellerr.  Gov.  Found.  IIosp.  331,333 

Wells  V.  Conipton  195,  301,  527  a,  539 

V.  Fisher  339 

V.  Fletcher  207,  339 

V.  Jesus  College  138 

V.  Lane  333 

V.  Porter  293 

I".  Stevens  513 

V.  Tucker  338 

Welsh  V.  Rogers  323 

Wendell  i'.  George  385 

Wentworth  v.  Lloyd  240 

Wertz  V.  May  469 

West  V.  Davis  97 

V.  RandaU  392 

V.  State  577 


SeoHon 

West  V,  Steward  56«  a 

West  Boylston  v.  Sterling  323 

Westbury  v.  Abcrdein  441 

West  Cambridge  v.  Lexington         109 

Weston  V.  Barker  173 

V.  Chamberlain  281 

V.  Emes  281 

V.  Penniman  494 

Wetmore  v.  INIell  108 

Whateley  v.  Menheim  531 

Whatley'i\  Fearnley  592 

Wheater's  case  226 

Wheatley  i\  Williams  245 

Wheelden  v.  Wilson  53 

Wheeler  v.  Aldcrson  101 

V.  Ilambright  180 

V.  Hatch  437 

V.  Hill  237 

V.  McCorrister  189 

V.  Moody  6 

t\  Webster  488  a 

Wheeling's  case  217 

Wheelock  v.  Doolittle  113 

Whclpdale's  case  284 

Whipple  V.  Foot  271 

V.  Walpole  440 

Wliitaker  v.  Bramson  70 

V.  Salisbury  572 

V.  Smith  58 

Whitamore  v.  Waterhouse        394,  427 

Whitbeck  v.  Whitbeck  26 

Whitcher  v.  Shattuck  101 

Whitcomb  v.  Whiting  112,  174 

White  V.  Ballou  440  a 

V.  Coatsworth  532 

■   V.  Crew  260 

V.  Everest  452 

V.  Foljambe  46 

V.  Hale  11^,  174 

V.  Hawn  371 

V.  Hill  358 

V.  Judd  310 

V.  Lisle  130,  137,  138 

V.  Parkin  303 

V.  Philbrick  533 

V.  Proctor  269 

V.  Saver  294 

V.  Trust.  Brit.  Museum  272 

V.  Wilson  5S,  68,  81,  281 

White's  case                65,  217,  328,  365 

Whitehead  v.  Scott  89,  101 

V.  Tattersall  184 

'WTiitehouse  v.  Atkinson  394,  420 

V.  Bickford  145,  485,  570 

Whitehouse's  case  343 

Whitelocke  v.  Baker  103,  104,  131 

V.  Musgrove  575 

^Vhitesell  v.  Crane  348 

Whitfield  v.  Colliugwood  564 


Ixx 


INDEX   TO    CASES   CITED. 


Whitford  r.  Tutin 
Wliitluck  c.  Ramsay 
Wliitiiiar.sli  V.  Aiiyle 

t\  ^^'alke^• 
"Wliitmor  r.  Frve 


Section 

87 

69 

440 

271 

5(J8 


A\'hitmore  c.  S.  Boston  Iron  Co.      292 

V.  Wilks  347 

AVhiteside's  appeal  41 

Wbitney  v.  Higelow  121 

V.  Ferris  177 

V.  lleywood  323 

Whitteniorc  v.  Brooks  572 

AVhittier  c.  Smith  2U7 

Whittuck  V.  Waters  493 

WliitwcU  V.  Scheer  73 

V.  Wyer         ^  201 

AVhyman  v.  Garth         '  5G9 

AViekens  v.  Goatley  6 

Wickes  V.  Caulk  564 

Wieks  V.  Smallbroke  375 

AViggin  V.  Lowell  333 

294 

V.  Steers  2.S4 

Wike  V.  Lightner  4iJl 

WikolF's  appeal  504 

Wilbur  V.  Selden       115,  147,  163,  165 

V.  Striekland  232 

V.  Wilbur  671 

Wilcocks  t:  Phillips  488 

Wileox  V.  Smith  83 

Wilde  V.  Aruisby  564 

Wiley  V.  Beau  572 

I".  Moor  568  a 

Wilkinson  v.  Johnson  dW 

V.  Lutwielgc  196 

V.  Seott  26,-3(t5 

V.  Yale  323 

WlUard  v.  Harvey           ,  508 

.  V.  Wiekhaui  427 

Williani.s  v.  Ann-oyd  541 

V.  Balilwin  254 

v.  Bartholomew  207 

V.  Bridges  180,  181 

r.  Bryant  69 

V.  Byrne  49 

V.  Cheney  171, 195,  552 

V.  Calleuder  55 

r.  E.  India  Co.         35,  40,  80 

v.  KyUm  20 

v.  (ieaves  115,  150,  151 

V.  (iilman  2iS8 

v.  (ioodwin  430 

V.  Hing.  etc.  Turnp.  Co.      78 

r.  Innes  27,  182 

r.  Johnson  312 

V.  Mundie  240 

V.  Ogle  (jo 

V.  Stevens  392 

V.  Thomas  74,  192 


Section 

Williams  v.  Van  Tuyl  568 

V.  Walbridge  385 

V.  Walker  443 

V.  Wetherbee  485 

V.  Wilkes  502 

V.  AViUard  165 

V.  Williams  45,  200 

Williams's  case  311 

Williamson  v.  Allison  51,  GO,  63 

V.  Henley  205 

v.  Scott  212 

Willingliam  v.  iMatthews  316 

AVilliugs  V.  Consequa  354 

Willis  V.  Barnard  102 

V.  Jernegan  197 

V.  McDole  558 

V.  Quimby  104 

Willis's  case  255 

AVilliston  v.  Smith  55 

Willoughbv  V.  Willoughby  4,  5 

Wills  V.  Ju'dd  354 

Wilmer  v.  Israel  118 

Wilson  c.  Allen  46 

V.  Betts  144 

V.  Boerem  156 

V.  Bowie  89 

V.  Calvei-t  201 

V.  Carnegie  195 

V.  Conine  511 

V.  Gary  409 

V.  Goodin  118 

V.  Hodges  41,  81 

V.  McCullough  434  a 

V.  Niles  548 


V.  Rastall 
V.  Rogers 
V.  Troup 
V.  Turner 
V.  Wilson 
Wilson's  case 


237,  239,  243,  247 

473 

237,  241 

27 

118 

225 


Wilton  V.  Girdlestone  5^1 

V.  Webster  102 

Wiltzie  V.  Adamson  197,  198 

Winaus  v.  Dunham  511 

AViuch  V.  Keeley  172 

AVing  V.  Angrave  30 

AVinn  v.  Cluunberlain  293 

V.  Patterson  21,  142 

Wiunipiseogee  Lake  Co.  v.  Young      6 

Winslup  V.  Bank  of  U.  S.  148,  167 

Winslow  V.  Kimball  341 

AViusmore  v.  Greenbank  183 

Winsor  v.  Uillaway  118 

V.  Pratt  273 

AVinter  v.  liutt  467 

V.  Wroot  102 

Wishart  v.  Downey  669 

Wishaw  V.  Barnes  408 

AVithee  v.  Rowe  681 


INDEX  TO   CASES   CITED. 


Ixxi 


Section 

i 

Section 

Withers  v.  Atkinson 

508 

Wright  V.  Hicks 

462 

V.  Gillcspy 

5G3 

V.  Howard 

17 

WithncU  r.  Gartliani 

138,  2<J3 

V.  Littler 

156 

Witiner  i\  Sclihitter 

539 

V.  Netherwood 

30 

Witnash  i\  (U^orge 

116,  loO,  187 

V.  Phillips 

6 

Wogan  V.  Small 

440 

V.  Sarniuila 

30 

Wolfott  V.  Hall 

55 

V.  Sharp 

118 

Wolf  r.  Washburn 

498,  513 

V.  Tatham     82, 

101, 

108, 

163, 

V.  Wveth 

165 

164 

535 

,  553 

Wolley  V.  iirownliill 

347 

V.  Willcox 

469  a 

Wood  0.  Braddifk 

112,  177 

V.  Wright 

272 

V.  Brayuard 

392 

Wyatt  V.  Gore 

251 

V.  Cooper 

437 

V.  Hodson 

174 

V.  Davis 

524 

V.  Lord  Hertford 

2(17 

V.  Drury 

572 

Wyer  v.  Dorchester,  &c 

.  Bank 

81  a 

V.  Fitz 

6 

Wylde's  case 

288 

V.  Hickok 

260  a 

Wyndiiara  v.  Chetwynd 

419 

V.  Jackson 

529,  531 

Wynne  v.  Tyrwhitt 

150 

154 

,  570 

V.  Le  Baron 

532 

V.  Mackinson 

445 

V.  Mann 

461 

Y. 

V.  Neale 

317 

V.  Prinple 

76 

Yabsley  v.  Doble 

180 

V.  Watkinson 

547 

Yandes  v.  Lefavour 

112 

V.  Whiting 

305 

Yarborough  v.  jNIoss 

201 

Woodbeck  v.  Keller 

255,  257 

Yardley  v.  Arnold 

421 

Woodbridge  v.  Spooner 

281 

Yarley  v.  Turnock 

72 

Woodcock's  case 

158 

Yates's  case 

257 

Woodcraft  v.  Kinaston 

502 

Yates  V.  Pyni 

292 

Woodford  v.  Ashley 

70 

Yeates  v.  Pim 

294 

Woodman  v.  Coolbi-oth 

571 

Yeatman,  Ex  x>arte 

238 

V.  Lane 

301 

V.  Dempsey 

319 

Woodruff  r.  Westcott 

190,  353 

V.  Hart 

51  a 

i\  Taylor 

546  e 

Yeaton  v.  Fry 

5 

414 

V.  Woodruff 

527  a 

York  V.  Blott 

399 

Woods  V.  Banks 

113,  508 

V.  Gribble 

402 

V.  Sawin 

287 

V.  Pease 

74 

V.  Woods 

41,  240  a 

York,  &c.  R.R.  Co.  v.  Winans 

6 

Woodsides  v.  The  State 

156 

Yoter  V.  Sanno 

251 

Woodstock  (Bank  of )  « 

Clark        108 

Young  V.  Bairner 

76 

385 

Woodward  v.  Cotton 

481 

V.  Black 

532 

V.  Larking 

211 

V.  Chandler* 

506 

V.  Newhall 

197  a,  356 

V.  Dearborn 

165 

r.  Picket 

268 

V.  Honner 

580 

Woolam  t'.  Hearn 

276 

V.  Kic'hards 

341 

Woolway  v.  Kowe 

190,  191 

V.  Smith 

180 

Wooster  v.  Butler 

145,  287 

v.  The  Bank  of  Alexan- 

V. Lyons 

96 

dria 

480, 

489, 

490 

Worcester  Co.  Bank  v.  Dorches- 

V. Wright 

27, 

186 

ter,  &c.  Bank 

81  a 

Youqua  v.  Nixon 

304 

Worrall  v.  Jones       330, 

353,  354,  356 

Yrissarri  v.  Clement 

4 

Worthington  i\  Hyler 

300,  301 

Wright  v.  Barnard 

5 

V.  Beckett 

444,  467 

Z. 

V.  Caldwell 

348 

V.  Court 

111 

Zollicoffer  v.  Turney 

452 

V.  Crookes 

281,  304 

Zouch  V.  Clay 

567, 

568 

V.  Delafield 

488  a 

This  case  is  reported  in  13  B.  Mun.  252,  and  not  as  cited  in  note  to  section  506. 


PAET    I. 


XATUEE     A^B    PRINCIPLES 


EYIDEXCE. 


TREATISE 


THE    LAW    OF    EVIDENCE. 


PART   I. 

OF  THE  NATURE  AND  PRINCIPLES  OF  EVIDENCE. 


CHAPTER  I. 

PEELIMINAEY    OBSERVATIONS. 

[*§1.  Definitions:  evidence;  proof;  demonstration;  moral  evidence. 

2.  Competent  evidence ;  satisfactory  evidence ;  cumulative  evidence. 

3.  Nature  and  object  of  evidence;  means  and  instruments  of  proof] 

§  1.  The  word  Evidence,  in  legal  acceptation,  includes  all  the 
means  by  which  any  alleged  matter  of  fact,  the  truth  of  which  is 
submitted  to  investigation,  is  established  or  disproved.^  This 
term,  and  the  word  proo/,  are  often  used  indifferently,  as  synony- 
mous with  each  other ;  but  the  latter  is  applied  by  the  most  accu- 
rate logicians,  to  the  effect  of  evidence,  and  not  to  the  medium  by 
which  truth  is  established.^  None  but  mathematical  truth  is 
susceptible  of  that  high  degree  of  evidence,  called  demonstration^ 
which  excludes  all  possibility  of  error,  and"  wliich,  therefore,  may 
reasonably  be  required  in  support  of  every  mathematical  deduc- 
tion. Matters  of  fact  are  proved  by  moral  evidence  alone  ;  by  which 
is  meant,  not  only  that  kind  of  e\ddence  which  is  employed  on 
subjects  connected  with  moral  conduct,  but  all  the  e^-idence  which 

1  See  Wills  on  Circumstantial  Evid.  2;         -  Whately's  Logic,  b.  iv.  ch.  iii.  §  1. 
1  Stark.  Evid.  10 ;  1  Pliil.  Evid.  1. 

[3] 


4  LAW   OF   EVIDENCE.  [PART   I. 

is  not  obtained  cither  from  intuition,  or  from  demonstration.  In 
the  ordinary  affairs  of  life,  we  do  not  require  demonstrative 
evidence,  because  it  is  not  consistent  with  the  nature  of  the  sub- 
ject, and  to  insist  upon  it  would  be  unreasonable  and  absurd. 
The  most  that  can  be  affirmed  of  such  things  is,  that  there  is  no 
reasonable  doubt  concerning  them.^  The  true  question,  therefore, 
in  trials  of  fact,  is  not  whether  it  is  possible  that  the  testimony 
may  be  false,  but  whether  there  is  sufficient  prohahility  of  its  truth ; 
that  is,  whether  the  facts  are  shown  by  competent  and  satisfactory 
evidence.  Things  established  by  competent  and  satisfactory  evi- 
dence are  said  to  be  proved. 

§  2.  By  competent  evidence  is  meant  that  which  the  very  nature 
of  the  thing  to  be  proved  requires,  as  the  fit  and  appropriate  proof 
in  the  particular  case,  such  as  the  production  of  a  writing,  where 
its  contents  are  the  subject  of  inquiry.  By  satisfactory  evidence, 
which  is  sometimes  called  sufficient  evidence,  is  intended  that  amount 
of  proof,  which  ordinarily  satisfies  an  unprejudiced  mind,  beyond 
reasonable  doubt.  The  circumstances  which  will  amount  to  this 
degTce  of  proof  can  never  be  previously  defined ;  the  only  legal 
test  of  which  they  are  susceptible  is  their  sufficiency  to  satisfy  the 
mind  and  conscience  of  a  common  man ;  and  so  to  convince  him, 
that  he  would  venture  to  act  upon  that  conviction,  in  matters  of 
the  highest  concern  and  importance  to  his  own  interest.^  Ques- 
tions respecting  the  competency  and  admissibility  of  evidence,  are 
entirely  distinct  from  those  which  respect  its  sufficiency  or  effect ; 
the  former  being  exclusively  within  the  province  of  the  court ;  the 
latter  belonging  exclusively  to  the  jury.^  Cmmdative  evidence 
is  evidence  of  the  same  kind,  to  the  same  point.  Thus,  if  a  fact  is 
attempted  to  be  proved  by  the  verbal  admission  of  the  party,  evi- 
dence of  another  verbal  admission  of  the  same  fact  is  cumulative  ; 
but  evidence  of  other  circumstances,  tending  to  establish  the  fact, 
is  not.* 

1  See  Gambler's  Guide  to  the  Study  they  also  believe  them.    Their  belief  is 

of   Moral    Evidence,   p.    121.     Even    of  afterwards  confirmed  by  experience;  for 

mathematical    truths,   this   writer   justly  whenever  there  is  occasion  to  apiJy  them, 

remarks,  that,  thou,u;h  capable  of  demon-  they  are  found  to  lead  to  just  conclusions, 

stration,  they  are  admitted  by  most  men  Id.  lOG. 
solely  on  the  moral  evidence  of  general         ^  1  Stark.  Evid.  514. 
notoriety.    For  most  men  are  neither  able         ^  Columbian  Ins.  Go.  v.  Lawrence,  2 

themsL'lVes    to   understand   mathematical  Pet.  25,  44 ;   Bank  United  States  v.  Cor- 

deraonstrations,  nor  have  they,  ordinarily,  coran,  Id.  121,  133 ;  Van  Ness  v.  Tacard, 

for  their  trutli,   the  testimony   of   tiiose  Id.  137,  149. 

who  do  miderstand   them  ;    but   finding         *  Tarker  ;;.  Hardy,  24  Pick.  246,  248. 
them   generaUy  believed  in   the  world, 


CHAP.  I.]  PRELIMINARY  OBSERVATIONS.  5 

§  3.  This  branch  of  the  law  may  be  considered  under  three  gen- 
eral heads,  namely:  First^  The  Nature  and  Principles  of  Evi- 
dence ;  —  Secondly,  The  Object  of  Evidence,  and  the  Rules  which 
govern  in  the  production  of  testimony ;  —  And  Tliirdly,  The  Means 
of  Proof,  or  the  Instruments,  by  which  facts  are  established. 
This  order  will  be  followed  in  farther  treating  this  subject.  But 
before  we  proceed,  it  will  be  proper  first  to  consider  what  things 
courts  will,  of  themselves,  take  notice  of,  without  proof. 

1* 


LAW   OP  EVIDENCE.  [PART  I. 


CHAPTER  11. 

OP   THINGS  JUDICIALLY  TAKEN   NOTICE   OP,   WITHOUT  PROOP. 

[  *  §  4.  Courts  take  judicial  notice  of  the  national  seal  of  other  nations. 

5.  So  also  of  the  law  of  nations,  courts  of  admkalty,  notarial  seals,  the  course 

of  nature,  the  calendar,  &c.  &c. 

6.  Of  the  territorial  divisions  of  the  country,  its  coiirts,  general  laws,  officers, 

and  all  things  universally  known,  &c. 
6a.  The  subject  further  illustrated  with  reference  to  more  recent  cases.] 

§  4.  All  civilized  nations,,  being  alike  members  of  the  great 
family  of  sovereignties,  may  well  be  supposed  to  recognize  each 
other's  existence,  and  general  public  and  external  relations.  The 
usual  and  appropriate  symbols  of  nationality  and  sovereignty  are 
the  national  flag  and  seal.  Every  sovereign,  therefore,  recognizes, 
and,  of  course,  the  public  tribunals  and  functionaries  of  every 
nation  take  notice  of  the  existence  and  titles  of  all  the  other  sov- 
ereign powers  in  the  civilized  world,  their  respective  flags,  and 
their  seals  of  state.  PubKc  acts,  decrees,  and  judgments,  exempli- 
fied under  this  seal,  are  received  as  true  and  genuine,  it  being  the 
highest  evidence  of  their  character .^  If,  however,  upon  a  civil  war 
in  any  country,  one  part  of  the  nation  shall  separate  itself  from  the 
other,  and  establish  for  itself  an  independent  government,  the  newly- 
formed  nation  cannot  without  proof  be  recognized  as  such,  by  the 
judicial  tribunals  of  other  nations,  until  it  has  been  acknowledged 
by  the  sovereign  power  under  whicli  those  tribunals  are  consti- 
tuted ;  2  the  first  act  of  recognition  lielonging  to  the  executive  func- 
tion, [  *  and  courts  will  take  judicial  notice,  whether  or  no,  such 
governments  have  been  so  acknowledged]  .^  But  though  the  seal  of 
the  new  power,  prior  to  such  acknowledgment,  is  not  permitted 

1  Church  V.  Hubbart,  2  Cranch,  187,  the  courts,  must  be  a  common-law  seal, 

238 ;    Griswold  v.  Pitcairn,  2  Conn.  85,  that  is,  an  impression  upon  wax.     Coit  v. 

90:  United  States  v.  Johns,  4  Dall.  416;  Milliken,  1  Denio,  R.  376. 
The  Santissima  Trinidad,  7  Wheat.  273,         -  City  of  Berne  v.  Bank  of  England,  9 

335;   Anon.  9  Mod.  66;   Lincoln  v.  Bat-  Ves.   347;    United   States   v.  Palmer,   3 

telle,  6  Wend.  475.    It  is  held  in  New  Wheat.  610,  634. 
York  that  such  seal,  to  be  recognized  in         '^  [*  Taylor  v.  Barclay,  2  Sim.  213.] 


CHAP.  II.]  THINGS   JUDICIALLY   TAKEN   NOTICE   OF.  7 

to  prove  itself,  yet  it  may  be  proved  as  a  fact  Ijy  other  competent 
testimony.^  .xind  the  existence  of  such  unacknowledged  government 
or  State  may,  in  like  manner,  be  proved ;  the  rule  being,  that  if  a 
body  of  persons  assemljle  together  to  protect  themselves,  and  suj)- 
port  their  own  independence,  make  laws,  and  have  courts  of  justice, 
this  is  evidence  of  their  being  a  state.^ 

§  5.  In  like  manner,  the  Law  of  Nations,  and  the  general  cus- 
toms and  usages  of  merchants,  as  well  as  the  public  statutes  and 
general  laws  and  customs  of  their  own  country,  as  well  ecclesiasti- 
cal as  civil,  are  recognized,  without  proof,  by  the  courts  of  all  civil- 
ized nations.^  The  seal  of  a  notary-public  is  also  judicially  taken 
notice  of  by  thti  courts,  he  being  an  officer  recognized  by  the  whole 
commercial  world.*  Foreign  Admiralty  and  Maritime  Courts,  too, 
being  the  courts  of  the  civilized  world,  and  of  coordinate  jurisdic- 
tion, are  judicially  recognized  everywhere  ;  and  their  seals  need 
not  be  proved.^  Neither  is  it  necessary  to  prove  things  which 
must  have  happened  according  to  the  ordinary  course  of  nature  ;  '^ 
nor  to  prove  the  course  of  time,  or  of  the  heavenly  bodies ;  nor 
the  ordinary  public  fasts  and  festivals  ;  nor  the  coincidence  of  days 
of  the  week  with  days  of  the  month ;  ^  nor  the  meaning  of  words 

1  United  States  v.  Palmer,  3  Wheat,  of  land  is  not,  as  a  general  rule,  such  a 
610,  634;  The  Estrella,  4  Wheat.  298.  pubUc  statute  as  the  courts  are  bound  to 
What  is  sufficient  evidence  to  authenti-  take  notice  of  and  expound,  without  re- 
cate,  in  the  courts  of  this  country,  the  quiring  its  production.  xYllegheny  v.  Nel- 
sentence  or  decree  of  the  court  of  a  for-  son,  25  Penn.  State  R.  332.] 
eign  gorernment,  after  the  destruction  of  *  Anon.  12  Mod.  845 ;  Wright  v.  Bar- 
such  government,  and  while  the  country  is  nard,  2  Esp.  700 ;  Yeaton  v.  Fry,  5  Cranch, 
possessed  by  the  conqueror,  remams  un-  535;  Brown  v.  Pliiladelpliia  Bank,  6  S.  & 
decided.  Hatfield  v.  Jameson,  2  Munf.  R.  484;  Chanoine  v.  Fowler,  3  Wend. 
53  70  71.  173,  178 ;  Bayley  on  Bills,  515  (2d  Am. 
'2  Yrissarri  v.  Clement,  2  C.  &  P.  223,  ed.  by  PhilUps  &  Sewall) ;  Hutcheon  v. 
per  Best,  C.  J.  And  see  1  Kent,  Comm.  Mannington,  6  Ves.  823 ;  Porter  v.  Jud- 
189 ;  Grotius,  De  Jur.  Bel.  b.  3,  c.  3,  §  1.  son,  1  Gray,  175. 

8  Ereskine  v.  Murray,  2  Ld.  Eaym.  ^  Croudson  r.  Leonard,  4  Cranch,  435 ; 
1542;  Heineccius  ad  Pand.  1.  22,  tit.  3,  Rose  v.  Himely,  Id.  292;  Church  v.  Hub- 
sec  119  •  1  Bl.  Comm.  75,  76,  85  ;  Edie  v.  bart,  2  Cranch,  187 ;  Thompson  v.  Stew- 
East  India  Co.  2  Biu-r.  1226, 1228 ;  Chand-  art,  3  Conn.  171,  181 ;  Green  v.  Waller,  2 
ler  V.  Grieves,  2  H.  Bl.  606,  n. ;  Rex  v.  Ld.  Raym.  891,  893;  Anon.  9  Mod.  66; 
Sutton,  4  M.  &  S.  542;  6  Vin.  Abr.  tit.  Story  on  tlie  Conflict  of  Laws,  §  643; 
Court,  D;  1  Rol.  Abr.  520.  D.  Judges  Hughes  v.  Cornelius,  as  stated  by  Lord 
will  also  take  notice  of  the  usual  practice  Holt,  in  2  Ld.  Eaym.  893.  And  see  T. 
and  course  of  conveyancing.  3  Sugd.  Raym.  473 ;  2  Show.  232,  s.  c. 
Vend.  &  Pur.  28;  Willoughby  v.  Wil-  «  Rex  v.  Luffe,  8  East,  202;  Fay  v. 
louo'hby,  1  T.  R.  772,  per  Ld.  Hardwicke  ;  Prentice,  9  Jur.  876. 
Doe  V.  Hilder,  2  B.  &  Aid.  793 ;  Rowe  v.  '  6  Vin.  Abr.  491,  pi.  6,  7,  8;  Hoyle  v. 
Grenfel,  Ky.  &  Mo.  898,  per  xVbbott,  C.  J.  CornwaUis,  1  Stra.  387 ;  Page  v.  Faucet, 
So,  of  the  general  Hen  of  bankers  on  se-  Cro.  El.  227 ;  Harvey  v.  Broad,  2  Salk. 
curities  of  theu-  customers,  deposited  with  62G ;  Hanson  v.  Shackelton,  4  Dowl.  48,; 
them.  Brandao  r.  Barnett,  3  M.  G.  &  Sc.  Dawkins  v.  Smithwick,  4  Flor.  R.  158 ; 
519  [See  also  infra,  §  489,  490.  A  spe-  i  Sasscer  v.  Farmers'  Bank,  4  Md.  409 ;] 
cial  act  for  the  survey  of  a  particidar  tract  [  *  Sprowl  v.  Lawrence,  33  Ala.  674.J 


8  LAW   OF   EVIDENCE.  [PART   I. 

in  the  vernacular  language  ;  ^  nor  the  legal  -weights  and  measures  ;  ^ 
nor  any  matters  of  pul^lic  history,  affecting  the  whole  people ;  ^ 
nor  public  matters,  affecting  the  government  of  the  country.* 
[  *  Nor  will  it  be  required  to  give  evidence  of  the  course  of  the 
seasons,  and  the  date  of  the  ordinary  maturity  of  particular  crops.*^ 
But  the  courts  cannot  take  judicial  notice  of  the  meaning  of  catch- 
words, such  as  "  the  cost  book  principle ; "  ^  "  Black  Republicans  " 
or  "  supporters  of  the  Helper  book ; "  ^  nor  of  the  import  of  abbre- 
viations, as  "  St.  Louis,  Mo. ; "  and  others  more  difficult  of  interpre- 
tation.^ And  it  was  held,  in  a  recent  case  before  the  New  York 
Court  of  Appeals,^  that  in  a  trial  by  jury,  it  was  proper  to  give 
evidence  of  historical  facts.] 

§  6.  Courts  also  take  notice  of  the  territorial  extent  of  the 
jurisdiction  and  sovereignty,  exercised  de  facto  by  their  own 
government ;  and  of  the  local  divisions  of  their  country,  as  into 
states,  provinces,  counties,  cities,  towns,  local  parishes,  or  the  like, 
so  far  as  political  government  is  concerned  or  affected ;  and  of  the 
relative  positions  of  such  local  divisions ;  but  not  of  their  precise 
boundaries,  farther  than  they  may  be  described  in  public  statutes.^*^ 
[*  But  not  whether  the  jurisdiction  de  facto  be  rightfully  exercised."] 

1  Clementi  v.  Golcling,  2  Campb.  25 ;  tice  tliat  the  knowledge  of  that  fable  of 
Commonwealth  v.  Kneeland,  20  Pick,  riianlrus  generally  prevailed  in  society. 
239.  [Courts  will  take  judicial  notice  of  Hoare  v.  Silverlock,  12  Jur.  695 ;  12  Ad. 
the  customary  abbreviations  of  Christian  &  El.  624,  n.  s. 

names.     Stephen  v.  State,  11  Geo.  225;         ^  [*  Floyd  zj.  Ricks,  14  Ark.  286. 
Weaver  v.  McElhenon,  13  Miss.  89.]  »  Bodmin  Mnes  Co.  in  re,  23  Beav. 

2  Hockin  v.  Cooke,  4  T.  R.  3U.     The    370. 

current  coins  of  tlie  country,  whether  es-         "^  Baltimore  v.  The  State,  15  Md.  Rep. 

tablished  by  statute   or  existing   imme-  376. 

morially,   will   be   judicially  recognized.         ^  EUis  v.  Park,  8  Texas,  205. 
[*  Daily  v.  State,  10  Ind.  536.]    The  courts         »  Mclvinnon   v.  Bhss,  21  N.  Y.  App. 

will  also  take  notice  of  the  character  of  206.] 

tiie  existing  circulating  medium,  and  of  tlie  ^'^  Deybel's  case,  4  B.  &  Aid.  242;  2 
popular  language  in  reference  to  it ;  Lamp-  Inst.  557 ;  Fazakerley  v.  Wiltshire,  1 
ton  V.  Haggard,  3  Monr.  149 ;  Jones  v.  Stra.  469 ;  Humphreys  v.  Budd,  9  Dowl. 
Overstreet,  4  Monr.  547;  [United  States  1000;  Ross  v.  Reddick,  1  Scam.  73; 
V.  Burns,  5-]\IcLean,  23  ;  United  States  v.  Goodwin  v.  Appleton,  9  Shepl.  453;  Van- 
King,  lb.  208;]  but  not  of  the  current  derwerker  v.  The  People,  5  Wend.  530; 
value  of  the  notes  of  a  bank  at  any  par-  [  *  State  v.  Powers,  25  Conn.  48  ;]  [Ham  v. 
ticular  time.  Feemster  v.  Ringo,  5  Monr.  Ham,  39  Maine,  2G3 ;  lb.  291 ;  Wright  v. 
336.  Phillips,  2  Greene  (Iowa),  191 ;  Robertson 

8  Bank  of  Augusta  v.  Earle,  13  Pet.  v.  Teal,  9  Texas,  344 ;  Wheeler  v.  Moody, 

519,  590;  1  Stark.  Ev.  211  (6th  Am.  ed.).  lb.  372;  Ross  v.  Austill,  2  Cal.  183  ;  Kid- 

[See  also  Douglass  v.  Branch  Bank,  19  der  v.  Blaisdell,  45  Maine,  461 ;  Winnipis- 

Ala.  659.]  eogee  Lake  Co.  v.  Young,  40  N.  II.  420.] 

*  Taylor    v.    Barclay,    2    Sim.    221.  But  courts  do  not  take  notic>e  that  particu- 

Where  a  libel  was   charged,  in  stating  lar  places  are  or  not  in  particular  counties, 

that  the  plaintiff's  friends,  in  the  advo-  Bruce  v.  Thompson,  2  Ad.  &  El.  789,  n.  s. 

cacy  of  her  claims,  "had  realized  the  fa-  [*But  see  Cooke  v  Wilson,  1  C.  B.  n.  s., 

ble  of  the  Frozen  Snake,"  it  was  held  153.1 
that  the  court  might  judicially  take  no-         "  [  *  State  v.  Dunwell,  3  R.  I.  127.] 


CHAP.  II.]  THINGS  JUDICIALLY   TAKEN   NOTICE   OF. 


9 


They  will  also  judicially  recognize  the  political  constitution  or 
frame  of  their  own  government;  its  essential  political  agents 
or  public  officers,  sharing  in  its  regular  administration ;  and  its 
essential  and  regular  political  operations,  powers,  and  action. 
Thus,  notice  is  taken,  by  all  tribunals,  of  the  accession  of  the 
Chief  Executive  of  the  nation  or  state,  under  whose  authority 
they  act ;  his  powers  and  })rivileges  ;  ^  the  genuineness  of  his  sig- 
nature,^  the  heads  of  departments,  and  principal  officers  of  state, 
and  the  public  seals ;  ^  the  election  or  resignation  of  a  senator  of 
the  United  States ;  the  appointment  of  a  cabinet  or  foreign 
minister ;  *  marshals  and  sheriffs,''  and  the  genuineness  of  their 
signatures,^  but  not  their  deputies ;  courts  of  general  jurisdiction, 
their  judges,'^  their  seals,  their  rules  and  maxims  in  the  adminis- 
tration of  justice,  and  course  of  proceeding ;  ^  also,  of  public 
proclamations  of  war  and  peace,^  and  of  days  of  special  public 
fasts  and  thanksgivings ;  stated  days  of  general  political  elections ; 
the  sittings  of  the  legislature,  and  its  established  and  usual  course 


1  Elderton's  case,  2  Ld.  Raj-m.  980, 
per  Holt,  C.  J. ;  [  *  Hizer  v.  State,  12  Ind. 
330 ;  Lindsey  v.  Attorney-ceneral,  33  Miss. 
508;  State  v.  Williams,  5  Wis.  308.] 

2  Jones  V.  Gale's  Ex'r,  4  Martin,  635. 
And  see  Rex  v.  MiUer,  2  W.  Bl.  797  ;  1 
Leach,  Cr.  Cas.  74;  Rex  v.  Gully,  1 
Leach,  Cr.  Cas.  98. 

3  Rex  V.  Jones,  2  Campb.  121 ;  Bennett 
V.  The  State  of  Tennessee,  Mart.  «&.  Yerg. 
133 ;  Ld.  MelvUle's  case,  29  How.  St.  Tr. 
707.  And  see  as  to  seals,  infra,  §  503,  and 
cases  there  cited.  [The  courts  of  the 
United  States  will  take  notice  of  the  per- 
sons who  from  time  to  time  preside  over 
the  patent-office,  whether  permanently  or 
transiently.  York,  &c..  Railroad  Co.  v.  Wi- 
nans,  17  How.  U.  S.  30.] 

*  Walden  v.  Canfield,  2  Rob.  Louis.  R. 
466. 

5  Holman  v.  Burrow,  2  Ld.  Raym. 
794;  [Ingraham  v.  State,  27  Ala.  17  ;  Ma- 
jor V.  State,  2  Sneed  (Teun.),  11.  The 
Court  of  Common  Pleas  will  take  judicial 
notice  that  the  Queen's  prison  is  in  Eng- 
land. Wickens  v.  Goatley,  8  Eng.  Law  & 
Eq.  420,  422.] 

6  Alcock  V.  Whatmore,  8  Dowl.  P.  C. 
615. 

7  Watson  V.  Hay,  3  Kerr,  559.  [The 
Supreme  Court  (of  Ohio)  will  take  judi- 
cial notice  of  the  time  fixed  for  the  com- 
mencement of  its  sessions,  but  not  of  the 
duration  of  any  particular  session.  Gilli- 
land  V.  Sellers,  2  Ohio  (n.s.),  223.  See 
also  Lindsay  v.  Williams,  17  Ala.  229.] 


s  Tregany  v.  Fletcher,  1  Ld.  Ravm. 
154;  Lane's  case,  2  Co.  16;  3  Com.  Dig. 
336,  Courts,  Q. ;  Newell  v.  Newton,  10 
Pick.  470;  Elliott  v.  Evans,  3  B.  &  P.  183, 
184,  per  Ld.  Alvanley,  C.  J. ;  Maberley  v. 
Robins,  5  Taunt.  625 ;  Tooker  r.  Duke  of 
Beaufort,  Sayer,  296 ;  [  *  Tucker  v.  State, 
11  Md.  322.]  Whether  Superior  Courts  are 
bound  to  take  notice  who  are  Justices  of 
the  inferior  tribunals,  is  not  clearlj'  settled. 
In  Skipp  V.  Hook,  2  Stra.  1080,  it  was  ob- 
jected that  they  were  not;  but  whether 
the  case  was  decided  on  that,  or  on  the 
other  exception  taken,  does  not  appear. 
Andrews,  74,  reports  the  same  case,  "ex 
relatione  alteriiis,"  and  equally  doubtful. 
And  see  Van  Sandau  v.  Turner,  6  Ad.  & 
El.  773,  786,  per  Ld.  Denman.  The 
weight  of  American  authorities  seems 
rather  on  the  affirmative  side  of  the  ques- 
tion. Hawks  V.  Kennebec,  7  Mass.  461 ; 
Riplcj'  V.  Warren,  2  Pick.  592;  Despau  v. 
Swindler,  3  Martin,  n.s.  705;  FoUain  v, 
Lefevre,  3  Rob.  Louis.  R.  13.  In  Louis- 
iana the  courts  take  notice  of  the  signa- 
tures of  executive  and  judicial  officers  to 
all  official  acts.  Jones  v.  Gale's  Ex'r,  4 
Martin,  635;  Wood  v.  Fitz,  10  Martin, 
196.  [Courts  will  also  take  notice  of  the 
times  and  places  of  holding  their  sessions. 
Kidder  i\  Blaisdell,  45  Maine,  461.] 

^  Dolder  v.  Ld.  Huntingfield,  11  Ves. 
292 ;  Rex  v.  De  Bercnger,  3  M.  &  S.  67 ; 
Taylor  r.  Barclay,  2  Sim.  213. 


10  LAW    OF   EVIDENCE.  [PART   I. 

of  proceeding ;  the  privileges  of  its  members,  but  not  the  transac- 
tions on  its  journals.^  Tlie  courts  of  the  United  States,  moreover, 
take  judicial  notice  of  the  ports  and  waters  of  the  United  States 
in  which  the  tide  ebbs  and  flows ;  of  the  boundaries  of  the  several 
states  and  judicial  districts ;  ^  and,  in  an  especial  manner,  of  all 
the  laws  and  jurisprudence  of  the  several  states  in  which  they 
exercise  an  original  or  an  appellate  jurisdiction.  The  judges  of 
the  Supreme  Court  of  the  United  States  are,  on  this  account,  bound 
to  take  judicial  notice  of  the  laws  and  jurisprudence  of  all  the 
states  and  territories.^  A  Court  of  Errors  will  also  take  notice  of 
the  nature  and  extent  of  the  jurisdiction  of  the  inferior  court 
whose  judgment  it  revises.*  In  fine,  courts  will  generally  take 
notice  of  whatever  ought  to  be  generally  known  within  the  limits 
of  their  jurisdiction.  In  all  these,  and  the  like  cases,  where  the 
memory  of  the  judge  is  at  fault,  he  resorts  to  such  documents  of 
reference  as  may  be  at  hand,  and  he  may  .deem  worthy  of  confi- 
dence.^ 

[  *  §  6a.  There  is  not  an  entire  consistency,  in  principle,  in  the 
decisions  in  the  several  states,  upon  this  question.  Thus  it  has 
been  held  courts  will  take  notice  of  the  usual  route  and  course  of 
travel  between  different  points  within  the  state,  in  order  to  deter- 
mine the  reasonableness  of  notice  to  take  depositions ;  ^  but  that 
they  will  not  take  notice  of  the  quantity  of  land  contained  within 
given  courses  and  distances.''  But  in  fact  the  latter  is  a  matter  of 
mere  computation,  and  no  more  requires  proof  than   any  other 


^  Lake  v.  King,  1  Saund.  131 ;  Birt  v.  5  McLean,  23 ;  United  States  v.  Kins;,  lb. 

Kothwell,  1  Ld.  l{aym.  210,  343;    Rex  v.  208.     Tiiey  also  take  judicial  notice  of 

Wilde,  1  Lev.  29(3;   1  Doug.  97,  n.  41;  treaties   between  th«  United  States  and 

Rex  V.  Arundel,  Hob.  109,  110,  111;  Rex  foreign   governments;  and  of  the  public 

V.  KnoUys,  1  Ld.  Rayra.  10,  15;    Stock-  acts  and  proclamations  of  those  govern- 

dale  V.  Hansard,  7  C.  &  P.  731 ;   9  Ad.  &  ments  and  their  publicly  authorized  agents 

El.  1;  11  Ad.  &  El.  253;  Sheriff  of  Mid-  in    carrying    tliose    treaties    into    effect, 

dlesex's  case, Jd.  273 ;  Cassidy  v.  Stewart,  United   States  v.  Reynes,  9  How.  U.  S. 

2  M.  &  G.  437.  127  ;  and  of  the  Spanish  L,aws  which  pre- 

2  Story  on  Eq.  Plead.,  §  24,  cites  United  vailed  in  Louisiana,  before  its  cession  to 

States  V.  La  Vengeance,  3  Dall.  297 ;  The  the  United  States.     United  States  v.  Tur- 

ApoUon,  9  Wheat.  374;  The  Thoma.s  Jef-  ner,  11  lb.  G63.] 

ferson,  10  Wiieat.  428 ;  Peyroux  v.  How-  »  Ibid. ;    Owings  v.  Hull,  9  Pet.  607, 

ard,  7  Pet.  312.     They  will  also  recognize  624,  625 ;  Jasper  v.  Porter,  2  McLean,  579; 

the  usual  course  of  the  great  inland  com-  [Miller  v.  McQuerry,  5  McLean,  469.] 

merce,  by  which  the  products  of  agricul-  *  Cliitty  v.  Dendy,  3  Ad.  &  El.  319. 

ture  in  the  valley  of  the  Mississippi  find  [See  March  v.  Coramonwealtli,  12  B.  Mon. 

their  way  to  market.     Gibson  v.  Stevens,  25.1 

8  How.  S.  C.  R.  384;    [Lathrop  v.  Stew-  5  Qresley  on  Evid.  295. 

art,  5  McLean,  1()7.    They  will  take  notice  "  [  *  Hipes  v.  Cochran,  13  Ind.  175. 

without  proof  of  tlie  legal  coins  of  the  ^  Tison  v.  Smith,  8  Texas,  147.] 
United  States.     United  States  v.  Burns, 


CHAP.  II.]  THINGS   JUDICIALLY   TAKEN   NOTICE   OP.  11 

proposition  based  upon  tlie  fundamental  rules  of  arithmetic ;  and 
the  former  is  a  thing  liable  to  vary  with  every  change  of  the  time- 
tables, upon  a  railway.  It  is  most  unquestionable,  that  courts 
will  take  notice  of  what  is  within  the  common  experience  or 
knowledge  of  all  men ;  as  the  length  of  time  ordinarily  required 
to  cross  the  Atlantic  by  steam,i  or  the  nature  of  lotteries  and  the 
manner  in  which  they  are  conducted.^  And  it  is  no  objection  that 
the  court  may  require  instruction  upon  the  point,  themselves. 
They  will  make  inquiries,  at  the  proper  place  for  acquiring  infor- 
mation. For  this  purpose  in  one  case  ^  the  Vice-Chancellor  made 
inquiries  at  the  Foreign  Office,  whether  the  Federal  Republic  of 
Central  America  had  been  recognized  by  the  British  Government. 
And  Lord  Hardwicke  inquired  of  an  eminent  conveyancer  as  to 
the  existence  of  a  rule  of  practice  in  that  department  of  the 
profession.^  And  the  United  States  Supreme  Court  resorted  to 
the  archives  and  public  record-books  of  the  United  States  to  inform 
themselves  of  particular  facts  material  to  be  known  to  the  proper 
understanding  of  a  cause  before  it.]  ^ 

1  [  *  Openheim  v.  Leo  Wolf,  3  Sandf.  *  WHIoughby  v.  WUloughby,  1  T.  R. 
Ch.  571.  772. 

2  BouUemet  v.  State,  28  Ala.  83.  ^  Romero  v.  The  United  States,  1  Wal- 

3  Taylor  v.  Barclay,  2  Sim.  22L  lace,  U.  S.    721 ;   Nelson,  J.,  in    United 

States  V.  Teschmaker,  22  How.  U.  S.  405.] 


# 


12  LAW   OF   EVIDENCE.  [PAET  I. 


k 


CHAPTER   III. 

OF    THE    GROUNDS    OF    BELIEF. 

[  *  §  7.  Our  experience  forms  the  basis  of  our  belief  in  human  testimony. 

8.  But  we  also  derive  great  aid  from  the  experience  of  others. 

9.  The  belief  in  Imman  testimony,  a  fundamental  principle  of  our  moral  nature. 
10.  This  behef  is  strengthened  by  many  corroborative  circumstances. 

IL  The  probability  of  an  hypothesis  is  determined  by  experience  and  reasoning 
combined. 

12.  Extensive  induction  tests  the  probability  of  a  narrative  of  events,  with  sur- 

prising certainty. 

13.  Distinction  between  direct  and  circumstantial  evidence. 

13a.  Consideration  of  the  degrees  of  certainty  produced  by  circumstantial  evidence.] 

§  7.  We  proceed  now  to  a  brief  consideration  of  the  G-eneral 
Nature  and  Principles  of  Evidence.  No  inquiry  is  here  proposed 
into  the  origin  of  human  knowledge ;  it  being  assumed,  on  the 
authority  of  approved  writers,  that  all  that  men  know  is  referable, 
in  a  philosophical  view,  to  perception  and  reflection.  But,  in  fact, 
the  knowledge  acquired  Ijy  an  individual,  through  his  own  per- 
ception and  reflection,  is  but  a  small  part  of  what  he  possesses ; 
much  of  what  we  are  content  to  regard  and  act  upon  as  knowledge 
having  been  acquired  through  the  perception  of  others.^  It  is  not 
easy  to  conceive  that  the  Supreme  Being,  whose  wisdom  is  so  con- 
spicuous in  all  his  works,  constituted  man  to  believe  only  upon 
his  own  personal  experience ;  since  in  that  case  the  world  could 
neither  be  governed  nor  improved ;  and  society  must  remain  in  the 
state  in  which  it  was  left  by  the  first  generation  of  men.  On  the 
contrary,  during  the  period  of  childhood,  we  believe  implicitly 
almost  all  that  is  told  us ;  and  thus  are  furnished  with  information 
which  we  could  not  otherwise  obtain,  but  which  is  necessary,  at  the 
time,  for  our  present  protection,  or  as  the  means  of  future  improve- 
ment. This  disposition  to  believe  may  be  termed  instinctive.  At 
an  early  period,  however,  we  begin  to  find  that,  of  the  things  told 
to  us,  some  are  not  true,  and  thus  our  implicit  reliance  on  the 

1  Abercrorabie  on  the  Intellectual  Powers,  Part  II.  sec.  1,  pp.  45,  46. 


CHAP.  III.] 


GROUNDS   OF   BELIEF. 


13 


testimony  of  others  is  weakened ;  first,  in  regard  to  particular 
tilings  in  which  we  have  been  deceived  ;  then  in  regard  to  persons 
whose  falseliood  we  have  detected ;  and,  as  these  instances  multiijly 
upon  us,  we  gradually  become  more  and  more  distrustful  of  such 
statements,  and  learn  by  experience  the  necessity  of  testing  them 
by  certain  rules.  Thus,  as  our  ability  to  obtain  knowledge  by 
other  means  increases,  our  instinctive  reliance  on  testimony  dimin- 
ishes, by  yielding  to  a  more  rational  belief.^ 

§  8.  It  is  true,  that  in  receiving  the  knowledge  of  facts  from  the 
testimony  of  others,  we  are  much  influenced  by  their  accordance 


1  Gambier's  Guide,  p.  87  ;  McKinnon's 
Philosophy  of  Evidence,  p.  40.  Tliis  sub- 
ject is  ti-eated  more  largely  by  Dr.  IJeid 
in  his  profound  "  Inquiry  into  the  Human 
Mnd,"  ch.  6,  sec.  2-1,  p.  42&-434,  in  these 
■words:  —  "The  wise  and  beneficent  Au- 
thor of  Nature,  who  intended  that  we 
should  be  social  creatures,  and  that  we 
should  receive  the  greatest  and  most  im- 
portant part  of  our  knowledge  by  the 
information  of  otlicrs,  hath,  for  these  pur- 
poses, implanted  in  our  natures  two  prin- 
ciples that  tally  with  each  other.  The 
first  of  these  principles  is  a  propensity  to 
speak  trutJi  and  to  use  the  signs  of  lan- 
guage, so  as  to  convey  our  real  sentiments. 
Tills  principle  has  a  powerful  operation, 
even  in  the  greatest  liars ;  for  where  they 
lie  once  they  speak  truth  a  hundred  times. 
Truth  is  always  uppermost,  and  is  the 
natural  issue  of  the  mind.  It  requires  no 
art  or  training,  no  inducement  or  tempta- 
tion, but  only,  that  we  yield  to  a  natural 
impulse.  Lying,  on  the  contrary,  is  doing 
violence  to  our  nature ;  and  is  never  prac- 
tised, even  by  the  worst  men,  without  some 
temptation.  Speaking  truth  is  like  using 
our  natural  food,  which  we  would  do  from 
appetite,  although  it  answered  no  end ;  but 
lying  is  like  taking  physic,  which  is  nau- 
seous to  the  taste,  and  which  no  man  takes 
but  for  some  end  which  he  cannot  other- 
wise attain.  If  it  should  be  objected,  that 
men  may  be  influenced  by  moral  or  politi- 
cal considerations  to  speak  truth,  and, 
therefore,  that  their  doing  so  is  no  proof 
of  such  an  original  principle  as  we  have 
mentioned ;  I  answer,  first,  tliat  moral  or 
political  considerations  can  have  no  influ- 
ence until  we  arrive  at  years  of  under- 
standing and  reflection  ;  and  it  is  certain, 
from  experience,  that  children  kceji  to 
truth  invariably,  before  they  are  caixible 
of  being  influenced  by  such  considerations. 
Secondly,  when  we  are  influenced  by  mor- 
al or  political  considerations,  we  must  be 
conscious  of  tliat  influence,  and  capable  of 
perceiving  it  upon  reflection.     Now,  when 


I  reflect  upon  my  actions  most  attentively, 
I  am  not  conscious  that,  in  speaking 
truth,  I  am  influenced  on  ordinary  occa- 
sions by  any  motive,  moral  or  political.  I 
find  that  truth  is  always  at  the  door  of  my 
lips,  and  goes  forth  spontaneously,  if  not 
held  back-  It  requires  neither  good  nor 
bad  intention  to  bring  it  forth,  but  only 
that  I  be  artless  and  undesigning.  There 
may,  indeed,  be  temptations  to  falsehood, 
which  Avould  be  too  strong  for  the  natural 
principle  of  veracity,  unaided  by  principles 
of  honor  or  virtue ;  but  where  there  is  no 
such  temptation,  we  speak  ti'uth  by  in- 
stinct ;  and  this  instinct  is  the  principle  I 
have  been  explaining.  By  this  instinct,  a 
real  connection  is  formed  between  our 
words  and  our  thoughts,  and  thereby  the 
former  become  fit  to  he  signs  of  the  latter, 
which  they  could  not  otherwise  be.  And 
although  this  connection  is  broken  in  every 
instance  of  lying  and  equivocation,  yet 
these  instances  being  comparatively  few, 
the  authority  of  human  testimony  is  only 
weakened  by  them,  but  not  destroyed. 
Anotlier  original  principle,  implanted  in 
us  b}'  the  Supreme  Being,  is  a  disposition 
toconfide  in  tlie  veracity  of  others,  and  to 
believe  what  they  tell  us.  This  is  the 
countcrjiart  to  the  former ;  and  as  that 
may  be  called  the  principle  of  veracity,  we 
sliall,  for  want  of  a  more  proper  name,  call 
this  the  princii)le  of  credulity.  It  is  mi- 
limitcd  in  children,  until  they  meet  with 
instances  of  deceit  and  falsehood ;  and  it 
retains  a  very  considerable  degree  of 
strength  through  life.  If  nature  had  left 
the  mind  of  the  speaker  in  iequilibrio, 
without  any  inclination  to  the  side  of  truth 
more  than  to  that  of  falsehood,  children 
would  lie  as  often  as  they  speak  truth,  un- 
til reason  was  so  far  ripened,  as  to  suggest 
the  imprudence  of  lying,  or  conscience,  as 
to  suggest  its  innnorality.  And  if  nature 
had  left  the  mind  of  the  hearer  in  a^quili- 
brio,  without  any  inclination  to  the  side 
of  belief  more  than  to  that  of  disbelief,  we 
should  take  no  man's  word,  until  we  had 


14 


LAW   OF    EVIDENCE. 


[part  I. 


with  facts  previously  known  or  believed  ;  and  this  constitutes  what 
is  termed  their  probability.  Statements,  thus  probable,  are  received 
upon  evidence  much  less  cogent  than  we  require  for  the  belief  of 
those  which  do  not  accord  with  our  previous  knowledge.  But 
Avhile  these  statements  are  more  readily  received,  and  justly  relied 
ui)on,  we  should  beware  of  unduly  distrusting  all  others.  While 
unbounded  credulity  is  the  attriljute  of  weak  minds,  which  seldom 
think  or  reason  at  all,  —  quo  magis  nesciunt  eo  macjis  admirantur, 
—  unlimited  scepticism  belongs  only  to  those  who  make  their  own 
knowledge  and  observation  the  exclusive  standard  of  probaljility. 
Thus  the  king  of  Siam  rejected  the  testimony  of  the  Dutch  ambas- 
sador, that  in  his  country,  water  was  sometimes  congealed  into 
a  solid  mass  ;  for  it  was  utterly  contrary  to  his  own  experience. 


% 


positive  evidence  that  he  spoke  truth. 
His  testimony  would,  in  this  case,  have  no 
more  authority  than  his  dreams,  wliich 
may  be  true  or  false ;  but  no  man  is  dis- 
posed to  believe  them,  on  this  account, 
tliat  they  were  dreamed.  It  is  evident, 
that  in  the  matter  of  testimony,  the  balance 
of  human  judgment  is  by  nature  inclined 
to  tJie  sif^le  of  beUef ;  and  turns  to  that  side 
of  itself,  when  there  is  nothing  put  into  the 
opposite  scale.  If  it  was  not  so,  no  propo- 
sition that  is  uttered  in  discourse  would  be 
beheved,  until  it  was  examined  and  tried 
by  reason  ;  and  most  men  would  be  unable 
to  find  reasons  for  believing  the  thousamlth 
.^partof  what  is  told  them.  Such  distrust 
•'and  incredulity  would  deprive  us  of  the 
greatest  benefits  of  society,  and  place  us 
in  a  worse  condition  than  that  of  savages. 
Children,  on  this  supposition,  would  be 
absolutely  incredulous,  and  therefore  abso- 
lutely incapable  of  instruction ;  those  who 
had  Jittle  knowledge  of  human  life,  and  of 
the  manners  and  characters  of  men,  would 
be  in  the  next  degree  incredidous ;  and 
the  most  credulous  men  woidd  be  those  of 
greatest  experience,  and  of  the  deepest 
penetration ;  because  in  many  cases,  they 
would  be  able  to  find  good  reasons  for  be- 
lieving testimony,  which  the  weak  and  the 
ignorant  could  not  discover.  In  a  word, 
if  credulity  were  the  effect  of  reasoning 
and  experience,  it  must  grow  up  and 
gather  strength  in  the  same  projiortion  as 
reason  and  experience  do.  But  if  it  is  the 
gift  of  nature,  it  will  be  strongest  in  child- 
hood, and  limited  and  restrained  by  expe- 
rience ;  and  tlie  most  superficial  view  of 
liuman  life  shows,  that  the  last  is  really 
the  case,  and  not  tlie  first.  It  is  the  inten- 
tion of  nature,  that  we  should  be  carried 
in  arms  before  we  arc  able  to  walk  ujjon 
our  legs ;  and  it  is  likewise  the  intention 


of  nature,  that  our  belief  should  be  guided 
by  the  authority  and  reason  of  others,  be- 
fore it  can  be  guided  by  oiu-  own  reason. 
The  weakness  "of  the  infant,  and  the  nat- 
ural affection  of  the  mother,  plainly  in  li- 
cate  the  former ;  and  the  natural  credulity 
of  youth  and  authority  of  age  as  plainly 
indicate  the  latter.  The  infant,  by  proper 
nursing  and  care,  acquires  strength  to  walk 
without  support.  Reason  hath  likewise 
her  infancy,  when  she  must  be  carried 
in  arms ;  then  she  leans  entirely  upon  au- 
tliority,  by  natural  instinct,  as  if  she  was 
conscious  of  her  own  weakness ;  and 
without  this  support  she  becomes  verti- 
ginous. When  brought  to  maturity  by 
pWpC?  cidture,  she  begins  to  feel  her  own 
strength,  and  leans  less  upon  the  reason  of 
others ;  she  learns  to  suspect  testimony  in 
some  cases,  and  to  disbelieve  it  in  others  ; 
and  sets  bounds  to  that  authority,  to  wliich 
she  was  at  first  entirely  subject.  But  still, 
to  tlie  end  of  life,  she  finds  a  necessity  of 
borrowing  light  from  testimony,  where  she 
has  none  within  herself,  and  of  leaning  in 
some  degree  upon  the  reason  of  others, 
where  she  is  conscious  of  her  own  imbe- 
cility. jiSaid  as,  in  many  instances,  Keason, 
even  in  her  maturity,  borrows  aid  from 
testimony,  so  in  others  she  mutually  gives 
aid  to  it  and  strengthens  its  authority. 
For,  as  we  find  good  reason  to  reject  testi- 
monj'  in  some  cases,  so  in  others  we  find 
good  reason  to  rely  upon  it  with  perfect 
security,  in  our  most  important  concerns. 
The  character,  the  number,  and  the  disin- 
terestedness of  witnesses,  the  impossibility 
of  collusion,  and  the  incredibility  of  their 
concurring  in  their  testimony  without  col- 
lusion, may  give  an  irresistible  strength  to 
testimony,  compared  to  whicli  its  native 
and  intrinsic  authority  is  very  inconsider- 
able." 


CHAP.  III.]  GROUNDS   OF   BELIEF.  15 

Sceptical  pliilosopliers,  inconsistentl}'  enougli  with  their  own  prin- 
ciples, yet  true  to  the  nature  of  man,  continue  to  receive  a  large 
portion  of  their  knowledge  upon  testimony  derived,  not  from  their 
own  experience,  but  from  that  of  other  men  ;  and  this,  even  when 
it  is  at  variance  with  much  of  their  own  personal  observation. 
Thus,  the  testimony  of  the  historian  is  received  with  confidence,  in 
regard  to  the  occurrences  of  ancient  times  ;  that  of  the  naturalist 
and  the  traveller,  in  regard  to  the  natural  history  and  civil  con- 
dition of  other  countries ;  and  that  of  the  astronomer,  respectuig 
the  heavenly  bodies ;  facts,  which,  upon  the  narrow  basis  of  his 
own  "  firm  and  unalterable  experience,"  upon  which  Mr.  Hume 
so  much  relies,  he  would  be  bound  to  reject,  as  wholly  unworthy 
of  belief. 

§  9.  The  uniform  habits,  therefore,  as  well  as  the  necessities  of 
mankind,  lead  us  to  consider  the  disposition  to  believe,  upon  the 
evidence  of  extraneous  testimony,  as  a  fundamental  principle  of 
our  moral  nature,  constituting  the  general  basis  upon  wliich  all 
evidence  may  be  said  to  rest.^ 

§  10.  Subordinate  to  this  paramount  and  original  principle,  it 
may,  in  the  second  place,  be  observed,  that  evidence  rests  upon  our 
faith  in  human  testimony,  as  sanctioned  by  experience ;  that  is, 
upon  the  general  experienced  truth  of  the  statements  of  men  of 
integrity,  having  capacity  and  opportunity  for  observation,  and 
without  apparent  influence  from  passion  or  interest  to  pervert  the 
truth.  This  belief  is  strengthened  by  our  previous  'knowledge  of 
the  narrator's  reputation  for  veracity ;  by  the  absence  of  con- 
flictmg  testimony ;  and  by  the  presence  of  that  wliich  is  corrob- 
orating and  cumulative. 

§  11.  A  third  basis  of  evidence  is  the  known  and  experienced 
connection  subsisting  between  collateral  facts  or  circumstances,^ 
satisfactorily  proved,  and  tlie  fact  in  controversy.  Tliis  is  merely 
the  legal '  application,  in  other  terms^  of  a  process,  familiar  in 
natural  philosophy,  showing  the  truth  of  an  hypothesis  by  its 
coincidence  with  existing  phenomena.  The  connections  and  co- 
incidences, to  which  we  refer,  may  be  either  physical  or  moral ; 
and  the  knowledge  of  them  is  derived  from  the  known  laws  of 
matter  and  motion,  from  animal  instincts,  and  from  the  physical, 
intellectual, .  and  moral  constitution  and  habits   of  man.     Their 

1  Abercrombie  on  the  Intellectual  Powers,  Part  II.  sec.  3,  pp.  70-75. 


16  LAW   OF   EVIDENCE.  [PART   I. 

foiTTc  depends  on  their  suflficicncy  to  exclude  every  other  hypothesis 
but  the  one  under  consideration.  Thus,  the  possession  of  goods 
recently  stolen,  accompanied  with  personal  proximity  in  point  of 
time  and  place,  and  inability  in  the  i»arty  charged,  to  show  how 
he  came  by  them,  Avould  seem  naturally,  though  not  necessarily, 
to  exclude  every  other  hypothesis  but  that  of  his  guilt.  But  the 
possession  of  the  same  goods,  at  a  remoter  time  and  place,  would 
warrant  no  such  conclusion,  as  it  would  leave  room  for  the  hy- 
pothesis of  their  having  been  lawfully  purchased  in  the  course  of 
trade.  Similar  to  this  in  principle  is  the  rule  of  noscitur  a  soeiis, 
according  to  which  the  meaning  of  certain  words,  in  a  written 
instrument,  is  ascertained  by  the  context. 

§  12.  Some  writers  have  mentioned  yet  another  ground  of  the 
credibility  of  evidence,  namely,  the  exercise  of  our  reason  upon 
the  effect  of  coincidences  in  testimony,  which,  if  collusion  be  ex- 
cluded, cannot  be  accounted  for  upon  any  other  hypothesis  than 
that  it  is  true.^  It  has  been  justly  remarked,  that  progress  in 
knowledge  is  not  confined,  in  its  results,  to  the  mere  facts  which 
we  acquire,  but  it  has  also  an  extensive  influence  in  enlarging 
the  mind  for  the  further  reception  of  truth,  and  setting  it  free 
from  many  of  those  prejudices  which  influence  men  whose  minds 
are  limited  by  a  narrow  field  of  observation .^  It  is  also  true,  that, 
in  the  actual  occurrences  of  human  life,  nothing  is  inconsistent. 
Every  event  which  actually  transpires  has  its  appropriate  relation 
and  place  in  the  vast  complication  of  circumstances,  of  which  the 
affairs  of  men  consist ;  it  owes  its  origin  to  those  which  have  pre- 
ceded it ;  it  is  intimately  connected  with  all  others  which  occur 
at  the  same  time  and  place,  and  often  with  those  of  remote  regions ; 
and,  in  its  turn,  it  gives  birth  to  a  thousand  others  which  succeed.^ 
In  all  this,  there  is  perfect  harmony ;  so  that  it  is  hardly  possible 
to  invent  a  story  which,  if  closely  compared  with  all  the  actual 
contemporaneous  occurrences,  may  not  be  shown  to  be  false. 
From  these  causes,  minds,  deeply  imbued  with  science,  or  enlarged 
by  long  and  matured  experience,  and  close  observation  of  the 
conduct  and  affairs  of  men,  may,  with  a  rapidity  and  certainty 
approaching  to  intuition,  perceive  the  elements  of  truth  or  false- 
hood in  the  face  itself  of  the  narrative,  without  any  regard  to  the 
narrator.      Thus,   Archimedes   might  have  believed   an   account 

1  1  Stark.  Evid.  471,  note.  «  1  Stark.  Evid.  496. 

^  Abercrombie  on  the  Intellectual  Powers,  Part  II.  sec.  3,  p.  71. 


CHAP.  III.]  GROUNDS   OF   BELIEF,  17 

of  tlie  invention  and  wonderful  powers  of  tlic  stcani-cnginc,  wliich 
his  unlearned  countrymen  would  have  rejected  as  incredilde ;  and 
an  experienced  judge  may  instantly  discover  the  falsehood  of 
a  witness,  whose  story  an  inexperienced  jury  might  l)c  inclined  to 
believe.  But  though  the  mind,  in  these  cases,  seems  to  have 
acquired  a  new  power,  it  is  properly  to  he  referred  only  to  experi- 
ence and  observation. 

§  13.  In  trials  of  fact,  it  will  generally  be  found  that  the  factum 
'prohandum  is  either  directly  attested  by  those  who  speak  from  their 
own  actual  and  personal  knowledge  of  its  existence,  or  it  is  to  be 
inferred  from  other  facts,  satisfactorily  proved.  In  the  former 
case,  the  truth  rests  upon  the  second  ground  before  mentioned, 
namely,  our  faith  in  human  veracity,  sanctioned  by  experience. 
In  the  latter  case,  it  rests  on  the  same  ground,  with  the  addition 
of  the  experienced  connection  between  the  collateral  facts  thus 
proved  and  the  fact  which  is  in  controversy  ;  constituting  the  third 
basis  of  evidence  before  stated.  The  facts  proved  are,  in  both 
cases,  directly  attested.  In  the  former  case,  the  proof  applies 
immediately  to  the  factum  prohandum,  without  any  intervening 
process,  and  it  is  therefore  called  direct  or  positive  testimony. 
In  the  latter  case,  as  the  proof  applies  immediately  to  collateral 
facts,  supposed  to  have  a  connection,  near  or  remote,  with  the 
fact  in  controversy,  it  is  termed  circumstantial;  and  sometimes 
but  not  with  entire  accuracy,  presumptive.  Thus,  if  a  witness 
testifies  that  he  saw  A  inflict  a  mortal  wound  on  B,  of  which  he 
instantly  died  ;  this  is  a  case  of  direct  evidence  ;  and,  giving  to  the 
witness  the  credit  to  which  men  are  generally  entitled,  the  crime 
is  satisfactorily  proved.  If  a  witness  testifies  that  a  deceased  per- 
son was  shot  with  a  pistol,  and  the  wadding  is  found  to  be  part  of 
a  letter,  addressed  to  the  prisoner,  the  residue  of  which  is  discov- 
ered in  his  pocket ;  here  the  facts  themselves  are  directly  attested  ; 
but  the  evidence  they  afford  is  termed  circumstantial ;  and  from 
these  facts,  if  unexplained  by  the  prisoner,  the  jury  may,  or  may 
not,  deduce,  or  infer,  or  presume  his  guilt,  according  as  they  are 
satisfied,  or  not,  of  the  natural  connection  between  similar  facts, 
and  the  guilt  of  the  person  thus  connected  with  them.  In  both 
cases,  the  veracity  of  the  witness  is  presumed,  in  the  absence  of 
proof  to  the  contrary ;  but  in  the  latter  case  there  is  an  additional 
presumption  or  inference,  founded  on  the  known  usual  connection 
between  the  facts  proved,  and  the  guilt  of  the  party  implicated. 

2* 


18  LAW   OF   EVIDENCE.  [PART   I. 

Tliis  oj>oration  of  the  mind,  wliicli  is  more  complex  and  difficult 
in  the  latter  case,  has  caused  the  evidence  afforded  ])y  circum- 
stances to  be  termed  jyyrsvmptive  evidence;  though  in  truth,  the 
operation  is  similar  in  both  cases. 

§  13rt.  Circumstantial  evidence  is  of  two  kinds,  namely,  cer- 
tain, or  that  from  which  the  conclusion  in  question  necessarily 
follows ;  and  uncertain,  or  that  from  which  the  conclusion  does 
not  necessarily  follow,  but  is  probable  only,  and  is  obtained  by 
process  of  reasoning.  Thus,  if  the  body  of  a  person  of  mature  age 
is  found  dead,  with  a  recent  mortal  wound,  and  the  mark  of 
a  bloody  left  hand  is  upon  the  left  arm,  it  may  well  be  concluded 
that  the  person  once  lived,  and  that  another  person  was  present 
at  or  since  the  time  when  the  wound  was  inflicted.  So  far  the 
conclusion  is  certain  ;  and  the  jury  would  be  bound  by  their  oaths 
to  find  accordingly.  But  whether  the  death  was  caused  by  suicide 
or  by  murder,  and  whether  the  mark  of  the  l)loody  hand  was  that 
of  the  assassin,  or  of  a  friend  who  attempted,  though  too  late,  to 
afford  relief,  or  to  prevent  the  crime,  is  a  conclusion  which  does 
not  necessarily  follow  from  the  facts  ])roved,  but  is  obtained  from 
these  and  other  circumstances,  by  probable  deduction.  The  con- 
clusion, in  the  latter  case,  may  be  more  or  less  satisfactory  or 
stringent,  according  to  the  circumstances.  In  civil  cases,  where 
the  mischief  of  an  erroneous  conclusion  is  not  deemed  remediless, 
it  is  not  necessary  that  the  minds  of  the  jurors  be  freed  from  all 
doubt ;  it  is  their  duty  to  decide  in  favor  of  the  party  on  whose 
side  the  weight  of  evidence  preponderates,  and  according  to  the 
reasonable  probability  of  truth.  But  in  criminal  cases,  because 
of  the  more  serious  and  irreparable  nature  of  the  consequences  of 
a  wrong  decision,  the  jurors  are  required  to  be  satisfied,  beyond 
any  reasonaljlc  doubt,  of  the  guilt  of  the  accused,  or  it  is  their 
duty  to  acquit  him ;  the  charge  not  being  proved  by  that  higher 
degree  of  evidence  which  the  law  demands.  In  civil  cases,  it  is 
sufficient  if  the  evidence,  on  the  whole,  agrees  with  and  supports 
the  hypothesis  which  it  is  adduced  to  prove ;  but  in  criminal 
cases  it  must  exclude  every  other  hypothesis  but  that  of  the  guili 
of  the  party.  In  both  cases,  a  verdict  may  well  be  founded  on 
circumstances  alone ;  and  these  often  load  to  a  conclusion  far 
more  satisfactory  than  direct  evidence  can  produce. ^ 

1  See  Bodine's  case,  in  the  New  Tork  the  nature  ami  vahie  of  tliis  kinrl  of  evi- 
Legal  Observer,  vol.  4,  pp.  89,  95,  where    dence  are  fully  discussed.     See  infra,  §  44 


CHAP.  III.]  GROUNDS   OF   BELIEF.  19 

to  48.  And  see  Commonwealth  j-j.  Web-  prisoner;  and  unless  they  are  satisfied  that 
ster,  5  Cush.  296,  ol()-oll»;  [People  ?\  the  proof  does  exeliule  every  otlier  liypoth- 
Videto,  1  Parker,  C.  R.  GOo.  The  court  esis,  then  they  ou^ht  not  to  convict  tlie 
cannot  be  required  to  instruct  the  jury  prisoner.  "  The  true  rule  is,  that  the  cir- 
that  if  the  proof  rests  upon  circumstantial  cumstances  must  be  such  as  to  produce  a 
evidence,  then  the  jur^-  nuist  be  satisfied  moral  certainty  of  guilt,  and  to  exclude 
that  the  government  has  proved  such  a  any  otlier  reasonable  hypotliesis."  Corn- 
coincidence  of  circumstances  as  excludes  monwealth  v.  Goodwin,  1-1  Gray,  55.] 
every  hypothesis  except  the  guilt  of  the 


20  LAW    OF   EVIDENCE.  [PART   I. 


CHArTER   IV. 

OF     PRESUxAIPTI  VE     EVIDENCE.   . 

*  §  14.  Presumptions  of  law,  and  of  fact ;  conclusive,  or  disputable. 

15.  Conclusive  presumptions  require  no  support,  and  admit  no  contradiction. 

Ifi.  These  are  defined  by  statutes,  as  those  of  limitation. 

17.  rrosmnptions  founded  on  prescription  ;  same  term  as  statutes  of  limitation  in 

analogous  cases. 

18.  Men  prosuinod  to  intend  the  natural  consequences  of  their  conduct. 

19.  Records  presumed  correct:  specialties  upon  consideration. 

20.  The  presumption,  omnia  rite  acta,  either  from  lapse  of  time,  or  from  the  fact 

of  being  done. 
20rt.   In  the  latter  case,  the  force  of  the  presumption  will  vary  witli  tlie  circum- 
stances. 

21.  So  ancient  deeds  and  wills  are  presumed  genuine  after  the  lapse  of  thirty  years. 

22.  I'>stoppels  are  of  the  class  of  conclusive  presumptions. 

23.  Tlie  recitals  in  deeds  conclusive  against  parties  and  privies. 

24.  The  grantor  in  a  deed  estopped  to  deny  that  he  had  good  title,  and  from 

claiming  title  adverse  to  his  covenants. 

25.  Tlie  ten.ant  cannot  deny  the  title  of  his  landlord 

2tj.  Recitals  in  deed  not  conclusive  except  of  facts  directly  stated. 

27.  Admissions,  solemn  and  unsolemn,  conclusive. 

28.  Conclusive  presumptions  apply  to  infants  and  married  women,  as  to  capacity 

and  consent. 
2'J.  In  some  countries  conclusive  presumptions  exist,  as  to  survivorship,  but  not 
common  law. 

30.  It  is  there  regarded  as  a  question  of  fact  for  the  jury. 

31.  Conclusive  presumptions  applied  by  the  law  of  nations. 

32.  These  presumptions  founded  more  upon  policy  than  i>robability. 

33.  Disputable  presumptions  good  until  disproved. 

34.  These  depend  upon  common  experience,  and  are  referable  to  the  jury,  where 
any  evidence  is  given. 

35.  Presumption  of  innocence  allowed  to  overcome  other  presumptions. 

36.  But  in  tlie  publication  of  libel  the  presumption  of  innocence  yields  to  that  of 

malice. 

37.  The   destruction   of  documentary  evidence  raises  a  presumption   of  guilt. 

The  fabrication  of  evidence  has  a  tendency  in  the  same  dircctijjjji. 

38.  I'rcsumptions  founded  on  the  course  of  trade  and  business. 
38a.  Presumptions  of  the  due  execution  of  wills  and  deeds. 

39.  Presumjitions  of  payment  of  bonds  and  other  instruments  from  the  lapse  of 

twenty  years. 

40.  Presumptions  from  the  due  course  of  business  in  public  and  private  adminis- 

tration of  duty. 

41.  Presumptions  in  regard  to  the  continuance  of  life. 


CHAP.  IV.]  OF   PRESUMPTIVE   EVIDENCE.  21 

§  42.  Presumptions   that   condition  and   cliaractcr   continue  unless  the  contrary  be 
shown. 

43.  Presumptions   of  the   adoption^of  foreign  laws,  from   the   comity  of  nations. 

44.  Presumptions  of  fact  defined. 

45.  Presumptions  from  experience  against  the  testimony  of  accompUces,  the  verbal 

admissions  of  a  party,  &c.  &c. 

46.  Presumptions  of  grants  and  conveyances. 

47.  Claims  long  acquiesced  in  presumed  to  be  founded  in  right. 

48.  The  subject  embraces  all  grounds  of  inferring  one  fact  from  the  existence  of 

others,  whether  founded  upon  a  mechanical  and  physical  connection,  or  upon 
mere  probability,  depending  upon  moral  evidence.] 

§  14.  The  general  head  of  Presumptive  Evidence  is  usually 
divided  into  two  branches,  namely,  jjresumptions  of  law  and  pre- 
sumptions  of  fact.  Presumptions  of  Law  consist  of  those  rules, 
which,  in  certain  cases,  either  forbid  or  dispense  with  any  ulterior 
inquiry.  They  arc  founded,  either  upon  the  first  principles  of 
justice  ;  or  the  laws  of  nature  ;  or  the  experienced  course  of  human 
conduct  and  affairs,  and  the  connection  usually  found  to  exist 
between  certain  things.  The  general  doctrines  of  presumptive 
evidence  are  not  therefore  peculiar  to  municipal  law,  but  are  shared 
by  it  in  common  with  other  departments  of  science.  Thus,  the 
presumption  of  a  malicious  intent  to  kill,  from  the  deliljerate  use 
of  a  deadly  weapon,  and  the  presumption  of  aquatic  haljits  in  an 
animal  found  with  webbed  feet,  belong  to  the  same  philosophy, 
differing-*  only  in  the  instance,  and  not  in  the  principle,  of  its 
application.  The  one  fact  being  proved  or  ascertained,  the  other, 
its  uniform  concomitant,  is  universally  and  safely  presumed.  It  is 
this  uniformly  experienced  connection,  which  leads  to  its  recogni- 
tion by  the  law  without  other  proof;  the  presumption,  however, 
having  more  or  less  force,  in  proportion  to  the  universality  of  the 
experience.  And  this  has  led  to  the  distribution  of  presumptions 
of  law  into  two  classes,  namely,  conclusive  and  dispntahle. 

§  15.  Conclusive,  or,  as  they  are  elsewhere  termed,  imperative,  or 
absolute  presumptions  of  law,  are  rules  determining  the  quantity 
of  evidence  requisite  for  the  support  of  any  particular  averment, 
which  is  not  permitted  to  be  overcome  by  any  proof  that  the  fact 
is  otherwise.  They  consist  chiefly  of  those  cases  in  which  the 
long-experier.ced  connection,  before  alluded  to,  has  been  found  so 
general  and  uniform  as  to  render  it  expedient  for  the  common 
good,  that  this  connection  should  be  taken  to  be  inseparable  and 
universal.  They  have  been  adopted  by  common  consent,  from 
motives  of  public  policy,  for  the  sake  of  greater  certainty,  and  the 


22  LAW   OF   EVIDENCE.  [PART   I. 

promotion  of  peace  and  quiet  in  the  community  ;  and  therefore  it 
is,  that  all  corroborating  evidence  is  dispensed  with,  and  all  oppos- 
iuii:  evidence  is  forbidden.^ 

§  IG.  Sometimes  this  common  consent  is  expressly  declared, 
through  the  medium  of  the  legislature,  in  statutes.  Thus,  by  the 
statutes  of  limitation,  where  a  debt  has  been  created  by  simple 
contract,  and  has  not  been  distinctly  recognized,  within  six  years, 
as  a  subsisting  obligation,  no  action  can  be  maintained  to  recover 
it ;  that  is,  it  is  conclusively  presumed  to  have  been  p;ud.  A  tres- 
pass, after  the  lapse  of  the  same  period,  is,  in  like  mannor, 
conclusively  presumed  to  have  been  satisfied.  So  the  possession 
of  land,  for  the  length  of  time  mentioned  in  the  statutes  of  limita- 
tion, under  a  claim  of  absolute  title  and  ownership,  constitutes 
against  all  persons  but  the  sovereign,  a  conclusive  presumption  of 
a  valid  grant.^ 

§  17.  In  other  cases,  the  common  consent,  by  which  this  class 
of  legal  presumptions  is  established,  is  declared  through  the  medium 
of  the  judicial  tribunals,  it  being  the  commoti  law  of  the  land ;  both 
being  alike  respected,  as  authoritative  declarations  of  an  imperative 
rule  of  law,  against  the  operation  of  which  no  averment  or  evidence 
is  received.  Thus,  the  uninterrupted  enjoyment  of  an  incoriX)real 
hereditament  for  a  period  beyond  the  memory  of  man,  is  held  to 
furnish  a  conclusive  presumption  of  a  prior  grant  of  that  which 
has  been  so  enjoyed.     This  is  termed  a  title  by  prescription.^     If 

1  The  presumption  of  the  'Roman  Law  -  Tliis  period  has  been  limited  difTcrcnt- 
is  defined  to  be,  —  "  Conjectura,  ducta  ab  ly,  at  diflerent  times  ;  but,  for  tlie  last  fifty 
eo,  quod  ut  plurimum  fit.  Ea  conjectura  years,  it  has  been  shortened  at  succeeding 
vel  a  ler/e  inducitur,  vel  a  jiidicp.  Qu:«  ab  revisions  of  tlie  law,  both  in  England  and 
ipsa  lege  inducitur,  vel  ita  coniparata,  ut  the  United  States.  By  Stat.  3  &-1  Wm.  IV. 
probationem  contrarii  baud  adniittat ;  vel  c.  27,  all  real  actions  are  barred,  after  twen- 
ut  eadem  possit  elidi.  Priorem  doctores  ty  years  from  the  time  when  the  right  of 
prasuniptionem  jCRis  et  de  juke,  poslerio-  action  accrued.  And  tiiis  period  is  adopted 
rem  prdisumptionem  Juris,  adiiellant.  Qux  in  most  of  the  United  States,  though  in 
a  Judice  indicitur  conjectura,  prcvsumpfio  some  of  the  states  it  is  reduced  to  seven 
noMiNis  vocari  solct ;  et  semper  admittit  years,  while  in  others  it  is  prolonged  to 
probationem  contrarii,  quamvis,  si  alicujus  fifty.  See  '6  Cruise's  Dig.  tit.  81,  cli. 
momenti  sit,  proband!  onere  relevet."  2,  the  synopsis  of  Limitions  at  the  end 
Jlein.  ad  Pand.  Pars  iv.  §  124.  Of  the  of  the  chapter  (Greenleaf's  ed.).  See  also, 
former,  answering  to  our  conclusive  pre-  4  Kent,  Comm.  188,  note  (a).  -The  same 
sumption,  Mascardus  observes,  —  "Super  period  in  regard  to  the  title  to  real  prop- 
hac  pncsumptione  lex  firmum  sancut  jus,  erty,  or,  as  some  construe  it,  only  to  tlie 
et  eam  pro  ven'tate,  liuhet."  De  I'rohationi-  profits  of  the  land,  is  ad()])led  in  the  Hindu 
bus,  vol.  1,  Quicst.  X.  48.  An  exception  Law.  See  JMacnaghten's  Elements  of 
to  the  general  conclusiveness  of  this  class  Hindu  Law,  vol.  1,  p.  201. 
of  presumptions  is  allowed  in  the  case  of  ^  3  Cruise's  Dig.  430,431  (Greenleafs 
admissions  in  Judkio,  which  will  be  here-  ed.).  " Pra3scriptio  est  titilus,  ex  usu  et 
after  mentioned.  See  infra,  §§  1U9,  186,  tempore  substantiam  capiens,  ab  authori- 
ses, 206.  tatelegis."    Co.  Litt.  113,  a.    What  length 


CHAP.  IV.] 


OF   PRESUMPTIVE   EVIDENCE. 


23 


this  enjoyment  has  been  not  only  nninterrupted,  but  exclusive  and 
adverse  in  its  character,  for  the  period  of  twenty  years,  this  also 
has  been  held,  at  common  law,  as  a  conclusive  presumption  of 
title.^  There  is  no  dilfcrence,  in  principle,  whether  the  subject  be 
a  corporeal  or  an  incorporeal  hereditament ;  a  grant  of  land  may 
as  well  be  presumed  as  a  grant  of  a  fishery,  or  a  common,  or  a 
way .2  But,  in  regard  to  the  effect  of  possession  alone  for  a  period 
of  time,  unaccompanied  by  other  evidence,  as  affording  a  presump- 
tion of  title,  a  difference  is  introduced,  by  reason  of  the  statute  of 
limitations,  between  corporeal  subjects,  such  as  lands  and  tene- 
ments, and  things  incorporeal ;  and  it  has  been  held,  that  a  grant 
of  lands,  conferring  an  entire  title,  cannot  be  presumed  from  mere 
possession  alone,  for  any  length  of  time  short  of  that  prescribed 
by  the  statute  of  limitations.  The  reason  is,  that,  with  respect  to 
corporeal  hereditaments,  the  statute  has  made  all  the  provisions 
which  the  law  deems  necessary  for  quieting  possessions  ;  and  has 
thereby  taken  these  cases  out  of  the  operation  of  the  common  law. 
The  possession  of  lands,  however,  for  a  shorter  period,  when 
coupled  with  other  circumstances,  indicative  of  ownership,  may 
justify  a  jury  in  finding  a  grant ;  but  such  cases  do  not  fall  within 
this  class  of  presumptions.^ 


of  time  constitutes  this  period  of  legal 
memory  has  been  much  discussed  among 
lawyers.  In  tliis  country,  the  courts  are 
inclined  to  adopt  the  periods  mentioned  in 
the  statutes  of  limitation,  in  all  cases  anal- 
ogous in  principle.  Coolidse  v.  Learned, 
8  Pick.  504  ;  Melvin  v.  Whiting,  10  Pick. 
295;  Ricard  v.  Williams,  7  Wheat.  110. 
In  England,  it  is  settled  by  Stat.  2  &  3 
Wm.  IV.  c.  71,  by  which  the  period  of  legal 
memory  has  been  limited  as  follows  :  in 
cases  of  rights  of  common  or  other  benefits 
arising  out  of  lauds,  except  tithes,  rents, 
and  services,  prima  facie  to  thirty  years  ; 
and  conclusively  to  sixty  jears,  unless 
pi'oved  to  have  been  held  by  consent,  ex- 
pressed by  deed  or  other  writing  ;  in  cases 
of  aquatic  rights,  ways,  and  other  ease- 
ments, prima  facie  to  twenty  years ;  and 
conclusively  to  forty  years,  unless  proved 
in  like  manner,  by  written  evidence,  to 
have  been  enjoyed  by  consent  of  the  own- 
er ;  and  in  cases  of  lights,  conclusively  to 
twenty  years,  unless  proved  in  like  man- 
ner, to  have  been  enjoj-ed  b}'  consent.  In 
the  Roman  Law,  jtrescriptions  were  of  two 
kinds :  extinctirc  and  acquisitive.  The  for- 
mer referred  to  rights  of  action,  which,  for 
the  most  part,  were  barred  by  the  lajise  of 
thirty  years.  The  latter  had  regard  to  the 
mode  of  acquiring  property  by  long  and 


uninterrupted  possession ;  and  this,  in  the 
case  of  immovable  or  real  j)roperty,  was 
limited,  inter  prccsentes,  to  ten  years,  and 
inter  ahsentes,  to  twenty  j'ears.  The  stu- 
dent will  find  this  doctrine  fully  discussed 
in  Mackeldey's  Compendium  of  Modern 
Civil  Law,  vol.  1,  p.  200-205,  290,  et  seq. 
(Amer.  ed.),  with  the  learned  notes  of  Dr. 
Kaufman.  See  also.  Novel.  119,  c.  7,  8. 
[See  also,  2  Greenl.  Ev.  (7th  ed.),  §  537- 
546,  tit.  Prescriptiox.] 

1  Tyler  v.  Wilkinson,  4  Mason,  397, 
402;  Ingraham  v.  Hutchinson,  2  Conn.  584; 
Bealey  v.  Shaw,  6  East,  208,  215 ;  Wright 
V.  Howard,  1  Sim.  &  Stu.  190,  203  ;  Strick- 
ler  V.  Todd,  10  Serg.  &  Rawle,  63,  69; 
Balston  v.  Bensted,  1  Campb.  463,  465 ; 
Daniel  v.  North,  11  East,  371 ;  Sherwood 
V.  BiHT,  4  Day,  244 ;  Tinkham  v.  Arnold, 
3  Greenl.  120  ;  Hill  v.  Crosby,  2  Pick.  466. 
See  Best  on  Presumptions,  p.  103,  n.  (m) ; 
Bolivar  ^lanuf.  Co.  v.  Neponset  Manuf. 
Co.  16  Pick.  241.  See  also  post,  vol.  2, 
§  537-546,  tit.  Prescription. 

-  Ricard  v.  Williams,  7  Wheat.  109  ; 
Prop'rs  of  Brattle  Street  Church  v.  Bul- 
lard,  2  Met.  363. 

3  Sumner  v.  Child,  2  Conn.  607,  628- 
632,  per  Gould,  J. ;  Clark  v.  Taunce,  4 
Pick.  245. 


24 


LAW  OF   EVIDENCE. 


[part  I. 


§  18.  Thus,  also,  a  sane  man  is  conclusively  presumed  to  contem- 
plate the  natural  and  probable  consequences  of  his  own  acts  ;  and, 
therefore,  the  intent  to  murder  is  conclusively  inferred  from  the 
deliberate  use  of  a  deadly  Aveapon.^  So,  the  deliberate  publication 
of  cahunny,  which  the  publisher  knows  to  be  false,  or  has  no  reason 
to  believe  to  be  true,  raises  a  conclusive  presumption  of  malice.^ 
So  the  neglect  of  a  party  to  ai)i)car  and  answer  to  process,  legally 
commenced  in  a  court  of  competent  jurisdiction,  he  having  been 
duly  served  therewith  and  summoned,  is  taken  conclusively  against 
him  as  a  confession  of  the  matter  charged.^ 

§  19.  Conclusive  presumptions  are  also  made  in  favor  of  judicial 
proceedings.  Thus  the  recoi'ds  of  a  court  of  justice  are  presumed 
to  have  been  correctly  made;"*  a  party  to  the  record  is  presumed  to 


1  1  Russ.  on  Crimes,  658-660 ;  Rex  v. 
Dixon,  8  M.  &  S.  15 ;  1  Hale,  P.  C.  440, 
441  ;  liritton,  50,  §  6.  But  if  death  does 
not  ensno  till  a  year  and  a  day  (that  is,  a 
full  year)  after  the  stroke,  it  is  eonclusive- 
ly  presumed  that  the  stroke  was  not  the 
sole  cause  of  the  death,  and  it  is  not  miu-- 
der.  4  IM.  Connn.  I'JT;  Ghussfordou  Eviil. 
5'J"2.  Tiie  doctrine  of  presumptive  evi- 
dence was  familiar  to  the  Mosaic  Code ; 
even  to  the  letter  of  the  principle  stated  in 
the  text.  Thus,  it  is  laid  down,  in  regard 
to  the  nianslayer,  that  "if  he  smite  him 
with  an  instninicnt  of  Iron,  so  that  he  die," 
—  or,  "if  he  smite  him  with  throwing  a 
stone  irlit'i-i'inlli  he  may  ilie,  and  he  die,"  — 
or,  "if  he  smite  him  with  a  hand-weapon  of 
ivood  wherewilh  he  ma}'  die,  and  he  die,  he 
is  a  murderer."  See  Numb.  xxxv.  16, 17, 
18.  Here,  every  instrument  of  Iron  is  con- 
clusively taken  to  be  a  deadly  weapon ; 
and  the  use  of  any  such  weapon  raises  a 
conclusive  presumption  of  malice.  Tlie 
same  presum])tion  arose  from  li/lm/  in  ani- 
hiisli,  and  thence  destroying  another.  Id.  v. 
20.  But,  in  other  cases,  the  existence  of 
malice  was  to  l)e  proved,  as  one  of  the 
facts  in  the  case  ;  and,  in  the  absence  of 
malice,  the  otlence  was  reduced  to  the  de- 
gree of  7uans laughter,  as  at  the  common 
Hiw.  Id.  V.  '22,  2'i.  This  very  reasonable 
distinction  seems  to  have  been  miknown 
to  the  Gentoo  Code,  which  demands  life 
for  lite  in  all  cases,  except  where  the  cul- 
prit is  a  Brainin.  "  If  a  man  deprives 
another  of  life,  the  magistrate  shall  deprive 
tiiat  person  of  life."  Halhed's  Gentoo 
Laws,  J5ook  16,  sec.  1,  \).  2'.'>-].  Formerly, 
if  the  mother  of  an  ilk'gitimate  child,  re- 
cently born  and  found  deail,  concealed  the 
fact  of  its  birth  and  death,  it  was  conclu- 
sively presumed  that  she  murdered  it. 
ytat.    21    Jac.    1,  c.  oT  ;    probably  copied 


from  a  similar  edict  of  Hen.  II.  of  France, 
cited  by  Domat.  But  this  unreasonable 
and  barbarous  rule  is  now  rescinded,  both 
in  England  and  America. 

The  sulyect  of  implied  malice,  from  the 
unexplained  fact  of  killing  with  a  lethal 
weapon,  was  fully  discussed  in  Connnon- 
wealth  V.  York,  0  Met.  lOo,  u])on  a  differ- 
ence of  opinion  among  the  learned  judges; 
and  the  rule,  there  laid  down,  in  tiivor  of 
the  inference,  was  re-affirmed  in  Connnon- 
wealth  V.  Webster,  5  Cush.  305.  [See 
also  Infra,  §  34. 

^  Bodwell  V.  Osgood,  3  Tick.  379; 
Ilaire  v.  Wilson,  9  B.  &  C.  643  ;  Rex  v. 
Shipley,  4  Doug.  73,  177,  ])er  Ashlnu'st,  J. 
[See  iihopost,  vol.  2  (7th  ed.),  §  418.] 

3  2  Erskine,  Inst.  780.  Cases  of  this 
sort  are  generally  regulated  by  statutes,  or 
by  the  rules  of  ])ractii'i>  established  l)y  the 
courts  ;  but  the  principle  evidently  Ijelongs 
to  a  general  jurisprudence.  So  is  the  Ro- 
man Law.  "  Contumacia,  eorum,  qui,  jus 
dicenti  non  obtemperant,  litis  dannio  coer- 
cetur."  Dig.  lib.  42,  tit.  1,  1.  53.  "  Si 
citatus  ali([uis  non  coinjiareat,  habetur  pro 
consentiente."  Mascard,  De  I'rob.  vol.3, 
]i.  253,  coucl.  1159,  n.  26.  See  further  on 
this  subject,  infra,  §  204-211.  The  right 
of  the  party  to  have  notice  of  the  proceed- 
ings against  him,  before  his  non-apiiear- 
ance,  is  taken  as  a  confession  of  the  matter 
alleged,  has  been  distinctly  recognized  in 
the  courts  both  of  England  and  America, 
as  a  rule,  founded  in  tlie  first  principles  of 
natural  justice,  and  of  universal  obligation. 
Fisher  r.  Lane,  3  Wils.  302,  303,  per  Lee, 
C.  J. ;  The  ]Mary,  9  Cranch,  144,  i)er  Mar- 
shall, C.  J. ;  Bradstreet  v.  The  Neptune 
Ins.  Co.  3  Sunm.  607,  per  Story,  J. 

*  Reed  v.  Easton,  1  East,  355.  Res 
judicata  pro  veritate  accipitur.  Dig.  lib. 
50,  tit.  17,  1.  207. 


CHAP.  IV.]  PRESUMPTIVE   EVIDENCE.  25 

have  been  interested  in  the  suit ;  ^  and,  after  verdict,  it  will  be 
presumed  that  those  facts,  without  proof  of  which  the  verdict  could 
not  have  been  found,  were  pi'oved,  though  they  are  not  expressly 
and  distinctly  alleged  in  the  record ;  provided  it  contains  terms 
sufficiently  general  to  comprehend  them  in  fair  and  reasonable 
intendment.^  The  presumption  will  also  be  made,  after  twenty 
years,  in  faA^or  of  every  judicial  tribunal  acting  within  its  jurisdic- 
tion, that  all  persons  concerned  had  due  notice  of  its  proceedings.-^ 
A  like  presumption  is  also  sometimes  drawn  from  the  solemnity  of 
the  act  done,  though  not  done  in  court.  Thus  a  bond  or  other 
specialty  is  presumed  to  have  been  made  upon  good  consideration^ 
as  long  as  the  instrument  remains  unimpeached.* 

§  20.  To  this  class  of  legal  presumptions  maybe  referred  one  of 
the  applications  of  the  rule,  Ex  diutuniitate  temporis  omnia  jjrcesvr 
niuntur  rite  et  solenniter  esse  acta ;  namely,  that  which  relates  to 
transactions,  which  are  not  of  record,  the  proper  e^ddence  of  which, 
after  the  lapse  of  a  little  time,  it  is  often  impossible,  or  extremely 
difficult  to  produce.  The  rule  itself  is  nothing  more  than  the 
principle  of  the  statutes  of  limitation,  expressed  in  a  different  form, 
and  applied  to  other  subjects.  Thus,  where  an  authority  is  given 
by  law  to  executors,  administrators,  guardians,  or  other  officers, 
to  make  sales  of  lands,  upon  being  duly  licensed  by  the  courts, 
and  they  are  required  to  advertise  the  sales  in  a  particular  manner, 
and  to  observe  other  formalities  in  their  proceedings  ;  the  lapse  of 
sufficient  time  (which  m  most  cases    is  fixed  "at  thirty  years)  ,^ 

1  Stein  V.  Bowman,  13  Pet.  209.  Howell,  St.  R.  261  ;  Feirer's  case,  6  Co.  7. 

2  .Jackson  v.  Pesked,  1  M.  &  S.  234,  237,  The  effect  of  judgments  will  be  farther 
per  Ld.  Elleuborough ;  Stephen  on  PL  considered  hereatter.  See  infra,  §  528- 
166,  167  ;  Spiers  v.  Parker,  1  T.  E.  141  ;  543. 

[Lathrop    v.    Stewart,   5    McLean,    167;  *  Lowe  i;.  Peers,  4  Burr.  2225. 

Sprague  v.  Litlierberry,  4  McLean,  442 ;  ^  See  Pejepscot  Prop'rs  v.  Ransom,  14 

Beale  r.  Commonwealth,  25  Penn.  State  INIass.  145 ;  Blossom  v.  Cannon,  Id.  177  ; 

R.  11  ;  Hordiman  v.  Herbert,  11  Texas,  Colman  v.  Anderson,  10  Mass.    105.     In 

G56.     In  pleading   a  discharge  in   bank-  some  cases,  twenty  years  has   been  held 

riiptcy,   if  the    plea  shows    the   District  sufficient.     As,   in  favor  of  the   acts   of 

C(mrt  to  have   had   jurisdiction,  and   to  sheriffs.     Drouet  r.  Rice,  2  Rob.  Louis.  R. 

have  proceeded,  on  tlie  petition  to  decree  374.     So,  after  partition  of  lands  by  an  in- 

the   discharge,  all  the  intermediate  steps  corporated  land  company,  and   a  several 

will  be  presumed  to  have  been  regularly  possession,  accordingly,  for  twenty  years, 

taken.     Morrison  v.  Woolson,  9   Foster,  it  was  presumed  that  its   meetings  were 

N.  H.  510].  duhMiotitied.     Society,  &c.,  z'.  Wlieeler,  1 

3  Brown  v.  Wood,  17  Mass.  68.  A  New  Hamp.  R.  310. '  [See  also  King  v. 
former  judgment,  still  in  force,  by  a  court  Little,  1  Cash.  436  ;  Freeman  v.  Thayer, 
of  competent  jurisdiction,  in  a  suit  between  33  Maine,  76;  Cobleigh  v.  Young,  15 
the  same  parties,  is  conclusive  evidence,  N.  H.  4U3 ;  Freeholders  of  Hudson  Co.  v. 
upon  the  matter  directly  in  question  in  State,  4  Zabr.  718 ;  State  r.  Lewis,_2  New 
such  suit,  in  any  subsequent  action  or  pro-  Jersey,  564 ;  Allcglieny  v.  Nelson,  25  Penn. 
ceeding.     Duchess  of  Kingston's  case,  11  St.  R.  332;  Plank-road  Co.    v.   Bruce,  6 

VOL.  I.  3 


26  LAW   OF  EVIDENCE.  [PART   I. 

raises  a  conclusive  presuni])tioii  that  all  tlie  legal  formalities  of  the 
sale  were  ohscrved.  Tlic  license  to  sell,  as  well  as  the  official  char- 
acter of  the  j)arty,  being  provaljle  by  record  or  judicial  registration, 
must  in  general  be  so  proved ;  and  tlie  deed  is  also  to  be  proved 
in  the  usual  manner ;  it  is  only  the  intermediate  proceedings  that 
are  presumed.  JProbatis  extremis^  prcesumuntur  media}  The  rea- 
son of  this  rule  is  found  in  the  great  probability,  that  the  necessary 
intermediate  proceedings  were  all  rcgidarly  had,  resulting  from 
the  lapse  of  so  long  a  period  of  time,  and  the  acquiescence  of  the 
parties  adversely  interested ;  and  in  the  great  uncertainty  of  titles, 
as  well  as  the  other  public  mischiefs,  which  would  result,  if  strict 
proof  were  required  of  facts  so  transitory  in  tlleir  nature,  and  the 
evidence  of  which  is  so  seldom  preserved  with  care.  Hence  it  does 
not  extend  to  records  and  public  documents,  which  are  supposed 
always  to  remain  in  the  custody  of  the  officers  charged  with  their 
preservation,  and  which,  therefore,  must  be  proved,  or  their  loss 
accounted  for,  and  supplied  by  secondary  evidence. ^  Neither  does 
the  rule  apply  to  cases  of  prescription.^  ^ 

[*  §  20a.  The  presumption,  omnia  7'ite  acta,  may  arise\from  lapse 
of  time,  as  before  stated ;  or  from  the  fact  of  being  done  by  one 
bound  to  know,  and  to  act  conformably  to,  the  It^w.  As  where  an 
oath  is  administered  to  a  deponent,  in  a  foreign  state,  by  one  sign- 
ing himself,  "  Justice  of  the  Supreme  Court."  ^  But  it  was  said, 
in  a  recent  English  caso,^  that  the  force  of  such  presumptions 
must  vary  with  the  circumstances  of  each  case.] 

§  21.  The  same  principle  applies  to  the  proof  of  the  execution  of 
ancient  deeds  and  wills.  Where  these  instruments  are  more  than 
thirty  years  old,  and  are  unblemished  by  any  alterations,  they  are 
said  to  prove  themselves  ;  the  bare  production  thereof  is  suflicient ; 

M(I.  457  ;  Emmons  v.  Oldham,  12  Texas,  2  W.  Bl.  1228.     Proof  tliat  one's  ancestor 

18.      Where  nine  years  before  the  eoin-  sat  in  tlie  House  of  Jiords,  and  tliat  no 

mencement  of  the  suit,  a  meetinj^  of   a  i)atent  can  he  discovered,  aflbrds   a  pre- 

proprietary  had  been  called,  on  the  appli-  sumption  tliat  he  sat  by  summons.     The 

cation    of    certain    persons    representing  Braye  Peerage,  6   CI.  &  Fin.  657.      Seo 

tiiemselves  to  be  proprietors,  it  was  held  also,  as  to  presuming  the  authority  of  an 

that  there  was  no  legal  presumption  that  executor,  Piatt  v.  McCullough,  1  McLean, 

the  petitioners  for  the  meeting  were  pro-  73. 

prietors,  however  the  rule  might  In-  as  to         '^  Brunswick?;. McKeen, 4  Greenl.  508; 

ancient  transactions,  but  that  proof  of  some  Hathaway  v.  Clark,  6  Pick.  4',t(). 
kind,  to  show  the  tact  that  they  were  pro-         ■'  IMdridge  ?'.  Knott,  ('owp.  215;  Mayor 

prietors,  must  be  adduced  to  sustain  the  of  Kingston  v.  Horner,  Id.  102. 
issue.      Stevens  v.    Taft,   3   Gray,   487;]         *  I  *  Saltar  v.  Applegate,  3  Zabr.  115. 
[  *  Williams  r.  Eyton,  4  il.  &iSI.  357  ;  s.  c.  ''   v'innicombe  v.  Butler,  34  L.  J.  Prob. 

5  Jur.  N.  s.  770.]  18.] 
1  Erskine,  Inst.  782 ;  Earle  v.  Baxter, 


CHAP.  IV.]  PRESUMPTIVE   EVIDENCE.  27 

the  subscribing  witnesses  being  presumed  to  be  dead.  This  pre- 
sumption, so  far  as  this  rule  of  evidence  is  concerned,  is  not  affected 
by  proof  that  the  witnesses  are  living.^  But  it  must  appear  that 
the  instrument  comes  from  such  custody,  as  to  afford  a  reasonable 
presumption  in  favor  of  its  gcuuineucss  ;  and  that  it  is  otherwise 
free  from  just  grounds  of  suspicion;'^  and  in  the  case  of  a  bond  for 
the  payment  of  money,  there  must  be  some  endorsement  of  interest, 
or  other  mark  of  genuineness,  within  the  thirty  years,  to  entitle  it 
to  be  read.3  Whether,  if  tlie  deed  be  a  conveyance  of  real  estate, 
the  party  is  bound  first  to  show  some  acts  of  possession  under  it, 
is  a  point  not  perfectly  clear  upon  the  authorities ;  but  the  weight 
of  opinion  seems  in'  the  negative,  as  will  hereafter  be  more  fully 
explained.^  But  after  an  undisturbed  possession  for  thirty  years, 
of  any  property,  real  or  personal,  it  is  too  late  to  question  the  au- 
thority of  the  agent,  who  has  undertaken  to  convey  it,^  unless  his 
autlw-rity  was  by  matter  of  record. 

§  z%^JEsto2)j)els  may  be  ranked  in  this  class  of  presumptions.  A 
man  is  shid  to  be  estopped,  when  he  has  done  some  act,  which  the 
policy  of  the  law  will  not  permit  him  to  gainsay  or  deny.  "  Tlie 
law  of  estoppel  is  not  so  unjust  or  absurd  as  it  has  been  too  much 
the  ciistom  to  represent."  ^  Its  foundation  is  laid  in  the  obligation 
which  every  man  is  under  to  speak  and  act  according  to  the  truth 
of  the  case,  and  in  the  policy  of  the  law,  to  prevent  the  great  mis- 
chiefs resulting  from  uncertainty,  confusion,  and  want  of  confidence, 
in  the  intercoiirse  of  men,  if  they  were  permitted  to  deny  that 
which  they  have  deliberately  and  solemnly  asserted  and  received 

1  Rex  V.  rarringdon,  2  T.  R.  471,  per  570;  Swinnerton  v.  Marquis  of  Stafford, 
Buller,  J.;  Doe  v.  Wolley,  8  B.  &  C.  22;  3  Taunt.   91;    Jackson  v.   Davis,  5  Cow- 
Bull.  N.  r.  255 ;  12  Vin.  Abr.  84 ;  Gov.  en,   123 ;   Jackson    v.  Luquere,  Id.   221 ; 
&c.  of  Chelsea  Waterworks  v.  Cowper,  1  Doe  v.  Beynon,  4  P.  &  D.  l'J3 ;  Doe  v. 
Esp.  275 ;  Rex  v.  Ryton,  5  T.  R.   259 ;  Samples,  3  Xev.  &  P.  254. 
Rex  V.  Long,  Buckby,  7  East,  45;  McKe-  ^  Forbes  v.  Wale,  1  W.  BI.  532;  1  Esp. 
nire  v.  Frazer,  9  Ves.  5  ;  Oldnail  v.  Deakin,  278,  s.  c. ;  {iifm,  §§  121,  122. 
8  C.  &  P.  462;    Jackson  v.   Blanshan,  3  ■*  I/tjVci.  §  144,  note  (1). 
Johns.  292;  Winn  v.  Patterson,  9  Peters,  ^  Stockbridge  r.  West  Stoekbridge,  14 
G74,  675 ;   Bank  United  States  i\  Dand-  Mass.  257.     Where  there  had  been  a  pos- 
ridge,  12  Wheat.    70,  71 ;     Henthorne  v.  session  of  thirty-five  years,  under  a  legis- 
Doe,  1  Blackf.  157  ;   Bennet  v.  Runyon,  lative  grant,  it  was   held  conclusive  evi- 
4  Dana,  R.  422,   424;    Cook   v.   Totten,  dence  of  a  good  title,  tliongh  the  grant  was 
6   Dana,  110  ;    Thurston  v.  Masterson,  9  unconstitutional.     Trustees  of  the  Episco- 
Dana,  233 ;  Hynde  v.  Vattiere,  1  McLean,  pal  Church  in    Ncwbern    r.  Trustees   of 
115;    Walton  v.  Coulson,  Id.    124;    Nor-  Newbern  Acadcniv,  2  Hawks,  233. 
thrope  V.  Wright,  24  Wend.  221 ;  [King  ^  Per  Taunton,  J.,   2  Ad.  &  El.  291. 
V.  Little,  1  Cush.  436  ;  Settle  v.  Allison,  8  [See  Cruise's  Dig.  (Greenl.  2d  cd.)  tit.  32, 
Geo.  201].  eh.  20,  §  64,  note.    (Greenl.  2d  cd.  vol.  2,  p. 

^  Roe  r.  Rawlings,  7  East,  279,  291 ;  12  611.)] 
Vin.  Abr.  84,  Evid.  A.  b.  5 ;  infra,  §§  142, 


28  LAW   OF   EVIDENCE.  [PART   I. 

as  true.  If  it  be  a  recital  of  facts  iu  a  deed,  there  is  implied  a 
soleiim  engagement,  that  the  facts  are  so,  as  they  are  recited.  The 
doctrine  of  estoppels  has,  ho^vever,  been  guarded  with  great  strict- 
ness ;  not  l)ecause  the  party  enforcing  it  necessarily  wishes  to 
exclude  the  truth  ;  for  it  is  rather  to  be  supposed,  that  that  is  true, 
wiiich  the  opposite  party  has  already  solemnly  recited ;  but  be- 
cause the  estoppel  may  exclude  the  truth.  Hence,  estoppels  must 
be  certain  to  every  intent ;  for  no  one  shall  be  denied  setting  up 
the  truth,  unless  it  is  in  plain  and  clear  contradiction  to  his  former 
allegations  and  acts.^ 

§  23.  In  regard  to  recitals  in  deeds,  the  general  rule  is,  that  all 
parties  to  a  deed  are  bound  by  the  recitals  therein,^  which  operates 
as  an  estoppel,  working  on  the  interest  in  the  land,  if  it  be  a  deed 
of  conveyance  and  binding  both  parties  and  privies ;  privies  in 
blood,  privies  in  estate,  and  privies  in  law.  Between  such  parties 
and  privies,  the  deed  or  other  matter  recited  needs  not  at  any  time 
be  otherwise  proved,  the  recital  of  it  in  the  subsequent  deed  being 
conclusive.  It  is  not  offered  as  secondary,  but  as  primary  evi- 
dence, which  cannot  bo  averred  against,  and  which  forms  a  muni- 
ment of  title.  Thus,  the  recital  of  a  lease,  in  a  deed  of  release,  is 
conclusive  evidence  of  the  existence  of  the  lease  against  the  parties, 
and  all  others  claiming  under  them  in  privity  of  estate.^ 

1  Bowman  v.  Taylor,  2  Ad.  &  El.  278,  niptcy.     T>oe  v.  Shelton,  3  Ad.  &  El.  265, 

289,  per  Ld.  C.  J.  Denrnan  ;  Id.  2'Jl,  per*  283.     If  the  deed  recite  tliat  the  coiisider- 

Taimton,  J. ;  Lainson  v.  Treinere,  2  Ad.  ation  was  paid  by  a  husband  and  wife,  pa- 

&  El.  792 ;  Pelletrau  v.  Jackson,  11  Wend,  rol  evidence  is  admissible  to  show  that  the 

117;  4  Kent,  Comm.  261,  note;  Carvers,  money  consisted  of  a  legacy  <>;iven  to  the 

Jackson,  4  Tefers,  83.  wife.     Doe  v.  Statham,  7  D.  &  Ky.  141. 

I-  But  it  is  not  true,  as  a  general  propo:         ^  Siielly  v.  Wright,  Willes,   9;  Crane 

sitioiij  THlal   one" ■claTriiTng~1an'3^  under"  a.,  v.  Morris,  6  Peters,  Gil ;  Carver  v.  Jack- 

'  (TeeS  to  which  lie  was  not  a  party,  adopts  son,  4  Peters,  1,  83;  Cosscns  v.  Cossens, 

I  fliCrccifalVof  fills   in   an  .anterior  deed,.  Willes,  25.     But  such  recital  does  not  bind 

i  which  "o  to  make  up  his  title.     'J'hercfore,  strangers,  or  tiiose  who  claim  by  title  pa- 

rwhere,  uy'a  deed  macTe"  in  January,  1796,  ramount  to   the  deed.      It  does  not  bind 

;  it  was  recited  that  S.  became  bankrupt  in  persons  claiming  by  an   adverse  title,  or 

j  1781,  and  that,  by  virtue  of  the  proceed-  persons  claiming  from    the  parties   by  a 

ings  under  the  commission,  certain  lands  title  anterior  to  the  date  of  the   reciting 

'  liad  been  conveyed  to  AV.  and  thereupon  deed.      See    Carver  v.   Jackson,  iih.  sup. 

!  W.  conveyed  tiie  same  lands  to  B.  for  the  In  this  case,  the  docti-ine  of  estoppel  is  very 

\  jiurpose  of  enabling  him  to  make  a  tenant  fully  expounded    by  Mr.   Justice    Story, 

[  to  the  prx'cijie  ;  to  which  deed  B.  was  not  where,  after  stating  the  general  i)rincii)le, 

,a   party;    and  afterwards,  in    February,  as  in  tiie  text,  with  the  qualiticalion  just 

I  1796,  B.  by  a  deed,  not  referring  to  the  mentioned,  he  proceeds  (p.  83)  as  follows. 

j  deed  last  mentioned,  nor  to  the  bankrupt-  "  Such  is  the  general  rule.     But  there  are 

;  cy,  conveyed  the  premises  to  a  tenant  to  cases,  in  which  such  a  recital  maybe  used 

t  the  pra>cii)e,  and  declared  the  uses  of  the  as  evidence  even  against   strangers.      If, 

i  recovery  to  be  to  his  mother  for  life,  re-  for  instance,  there  be  the  recital  of  a  lease 

.;  mainder  to  himself  in  fee  ;    it  was  held  in  a  deed  of  release,  and  in  a  suit  against 

i  that   B.  in  a  suit  respecting  other  land,  a  stranger  the  title  under  the  release  comes 

was  not  estopped  from  disputing  S.'s  bank-  in  question,  there  the  recital  of  the  lease 


CHAP.  lY.] 


PRESUMPTIVE    EVIDENX'E. 


29 


§  24.  Thus,  also,  a  grantor  is,  in  general,  estopped  by  his  deed 
from  denying  that  he  had  any  title  in  the  thing   granted.     But 


in  such  a  release  is  not  per  s"  evidence  of  recital  was  offered  as  evidence  against  a 

the  existence  of  the  lease.     But  if  the  ex-  stranger.     In  any  other  point  of  view,  it 

istence  and  loss  of  the  lease  be  established  would  be  inconsistent  with  the  preceding 

by  other  evidence,  there  the  recital  is  ad-  propositions,  as  well  as  with  the  cases  in  2 

missible,  as  secondary  proof,  in  the  absence  P.  Wihiams  and  Willes.     In  Trevivan  v. 

of  more  perfect  evidoiice,  to  establish  the  Lawrence,  1    Salk.    27(5,  the   court   held, 

contents  of  the  lease  ;  and  if  tlie  transac-  that   the  parties  and   all  claiming   under 

tion  be  an  ancient  one,  and  the  possession  them  were  estopi)ed  from  asserting  that  a, 

has  been  long  held  under  such  release,  and  judgment,  sued  against  the   party  as  of 

is  not  otherwi.xe  to  be  accounted  for,  there  Trinity  term,  was  not  of  that  term,  but  of 

the  recital  will  of  itself,  under   such  cir-  another  term  ;  that  very  point  having  aris- 

cumstances,    materially   fortify   the    pre-  en  and   been   decided  against   the   party 

sumption,  from  lajise  of  time  and  length  of  upon  a  srire  facias  on  the  judgment.     But 

possession,  of  the   original    existence   of  the  court  there  held  (what  is  very  material 


the  lease.  Leases,  like  other  deeds  and 
grants,  may  be  .presumed  from  long  pos- 
session, which  cannot  otherwise  be  ex- 
plained ;  and,  under  such  circumstances, 
a  recital  of  the  fact  of  sucli  a  lease  in  an 


to  the  present  purpose),  that 'if  a  man 
make  a  lease  by  indenture  of  D  in  which 
he  hath  notliing,  and  afterwards  purchases 
D  in  fee,  and  afterwards  bargains  and 
sells  it  to  A  and  his   lieirs,  A  shall   be 


old  deed  is  certainly  far  stronger  presump-  bound  by  this  estoppel ;  and,  that  where 
tive  proof  in  favor' of  such  possession  un-  an  estoppel  works  on  the  interest  of  the 
der  title,  than  the  naked  presumption  aris-  lands,  it  runs  with  the  land  into  whose 
ing  from  a  mere  unexplained  possession,  hands  soever  the  land  comes;  and  an 
Such  is  the  general  result  of  tlie  doctrine  ejectment  is  maintainable  upon  the  mere 
to  be  found  in  the  best  elementary  v.-riters  estoppel.'  This  decision  is  important  in 
on  the  subject  of  evidence.  It  may  not,  several  respects.  In  the  first  place,  it 
however,  be  unimportant  to  examine  a  shows  that  an  estoppel  may  arise  by  im- 
few  of  the  authorities  in  support  of  the  plication  from  a  grant,  that  the  party  hath 
doctrine  on  which  we  rely.  The  cases  of  an  estate  in  the  land,  wliich  he  may  con- 
Marchioness  of  Anandale  r.  Harris,  2  P.  vey,  and  he  shall  be  esto])ped  to  deny  it. 
Wms.  432,  and  Shelly  v.  Wright,  Willes,  In  the  next  place,  it  shows  that  such  es- 
9,  are  sutficiently  direct,  as  to  the  opera-  toppel  binds  all  persons  claiming  the  same 
tion  of  recitals  by  way  of  estoppel  be-  land,  not  only  under  the  sa^pe  deed,  but 
tween  the  parties.  In  Ford  v.  Gray,  1  under  any  subsequent  conveyance  from 
Salk.  285,  one  of  the  points  ruled  was  the  same  party  ;  that  is  to  say,  it  binds 
'that  a  recital  of  a  lease  in  a  deed  of  a  re-  not  merely  privies  in  blood,  but  privies  in 
lease  is  good  evidence  of  such  lease  against  estate,  as  subsequent  grantees  and  alienees, 
the  releasor,  and  those  who  claim  under  In  the  next  place,  it  shows  that  an  estoj)- 
him  ;  but,  as  to  others,  it  is  not,  without  pel,  which  (as  the  phrase  is)  works  on  the 
proving  that  there  was  such  a  deed,  and  interest  of  the  land,  runs  with  it,  into 
it  was  lost  or  destroyed.'  The  same  case  whosesoever  hands  the  land  comes.  The 
is  reported  in  0  Mod.  44,  where  it  is  said  same  doctrine  is  recognized  by  Lord  Chief 
that  it  was  ruled,  '  that  the  recital  of  a  Baron  Comyns,  in  his  Digest,  Estoppel, 
lease  in  a  deed  of  release  is  good  evidence  B.  &  E.  10.  In  the  latter  place  (E.  10) 
against  tlie  releasor,  and  those  that  claim  he  puts  the  case  more  stroiigly ;  for  lie 
under  him.'  It  is  then  stated,  that '  a  fine  asserts,  that  the  estoppel  binds,  even 
was  produced,  but  no  deed  declaring  tlie  though  all  the  facts  are  tound  in  a  special 
uses  ;  but  a  deed  was  offered  in  evidence,  verdict.  '  But,'  says  he,  and  he  relies  on 
which  did  recite  a  deed  of  limitation  of  his  own  authority,  '  where  an  estoppel 
the  uses,  and  the  question  was,  whether  binds  the  estate  and  converts  it  to  an  in- 
that  (recital)  was  evidence  ;  and  the  court  terest,  the  coiu't  will  adjudge  accordingly, 
said,  that  the  bare  recital  was  not  evidence;  As  if  A  leases  land  to  B  for  six  years,  in 
but  that,  if  it  could  be  proved  that  such  a  which  he  has  nothing,  and  then  purchases 
deed  liad  been  [executed],  and  [is]  lost,  it  a  lease  of  the  same  hind  for  twenty-one 
would  do  if  it  were  recited   in  another.'  vears,  and  afterwards  leases  to  C  for  ten 


This  was,  doubtless,  the  same  point  assert- 
ed in  the  latter  clause  of  the  report  in  Sal- 
keld  ;  and,  thus  explained,  it  is  perfectly 
consistent  with  the  statement  in  Salkeld  ; 


years,  and  all  this  is  found  by  a  verdict ; 
the  court  will  adjudge  the  lease  to  B  good, 
though  it  be  so  only  by  conclusion.'  A 
doctrine  similar  in  principle  was  asserted 


and  must  be  referred  to  a  case  where  the    in  this  court, in  Terrett  v.  Taylor,  9  Cranch, 


30 


LAW   OF   EVIDENCE. 


[part  I. 


this  rule  does  not  apply  to  a  grantor  acting  officially,  as  a  public 
Tagent  or  trustee.^  A  covenant  of  warranty  also  estops  the  grantor 
I  from  setting-up  an  after-acquired  title  against  the  grantee,  for  it  is 
1  a  perpetually  operating  covenant ;  ^  but  he  is  not  thus  estopped  by 
!  a  covenant,  that  he  is  seised  in  fee  and  has  good  right  to  convey ;  ^ 
'Tor  any  seisin  in  fact,  though  by  wrong,  is  sufficient  to  satisfy  this 
covenant,  its  import  being  merely  this,  that  he  has  the  seisin  in 
fact,  at  the  time  of  conveyance,  and  thereby  is  qualified  to  transfer 


52.  The  flistinction,  then,  which  was 
xirged  at  tlie  bar,  that  an  estoppel  of  this 
sort  binds  those  claiming  under  the  same 
deed,  but  not  those  claiming  by  a  subse- 
quent deed  under  the  same  party,  is  not 
well  founded.  All  privies  in  estate  by  a 
subsequent  deed  are  bound  in  the  same 
manner  as  privies  in  blood  ;  and  so,  in- 
deed, is  the  doctrine  of  Comyns's  Digest, 
Estoppel  B.,  and  in  Co.  Lit.  852a.  We 
may  now  pass  to  a  short  review  of  some 
of  the  American  cases  on  this  subject. 
Denn  v.  Cornell,  3  Johns.  Cas.  174,  is 
strongly  in  point.  There,  Lieutenant-gov- 
eruor  Golden,  in  1775,  made  his  will,  and 
in  it  recited  that  he  had  conveyed  to  his 
son  David  his  lands  in  the  township  of 
Flushing,  and  he  then  devised  his  other 
estate  to  liis  sons  and  daughters,  &c.,  &c. 
Afterwards,  David's  estate  was  confiscated 
\uider  the  act  of  attainder,  and  the  defend- 
ant in  ejectment  claimed  under  that  con- 
fiscation, and  deduced  liis  title  from  the 
state.  No  deed  of  the  Flushing  estate 
(the  land  in  controversy)  was  proved  from 
the  father ;  and  the  heir  at  law  sought  to 
recover  on  that  ground.  But  tlie  court 
held  that  the  recital  in  the  M'ill,  that  the 
testator  had  conveyed  the  estate  to  David, 
was  an  estoppel  of  the  heir  to  deny  that 
fact,  and  bound  the  estate.  In  this  case, 
the  estoppel  was  set  up  by  the  tenant 
claiming  under  the  state,  as  an  estoppel 

'  running  with  the  land.  If  the  state  or  its 
grantee  might  set  up  the  estoppel  in  favor 
of  their  title,  then,  as  estoppels  are  recip- 
rocal, and  bind  both  parties,  it  might  have 

■  been  set  up  against  the  state  or  its  grantee. 

I  It  has  been  said  at  the  bar,  that  the  estate 

I  is  not  bound  by  estoppel  by  any  recital  in  a 
deed.  That  may  be  so  where  the  recital  is 
in  his  own  grants  or  patents,  for  they  are 
deemed  to  be  made  upon  suggestion  of  the 
grantee.  (But  see  Commonwealth  v.  Ve- 
jepscot  Proprietors,  10  Mass.  155.)  But 
wliere  the  state  claims  title  under  the  deed, 
or  other  solemh  acts  of  third  persons,  it 
takes  it  mm  oiiere,  and  subject  to  all  the  es- 
toppels running  with  the  title  and  estate,  in 
the  same  way  as  other  privies  in  estate. 


In  Penrose  v.  Griffith,  4  Binn.  231,  it  was 
held  that  recitals  in  a  patent  of  the  Com- 
monwealth were  evidence  against  it,  but 
not  against  persons  claiming  by  a  title  ])ar- 
amount  from  the  Commonwealth.  The 
court  there  said,  that  the  rule  of  law  is, 
that  a  deed  containing  a  recital  of  another 
deed  is  evidence  of  the  recited  deed  against 
the  grantor,  and  all  persons  claiming  by 
title  derived  from  him  subsequently.  The 
reason  of  the  rule  is,  that  the  recital 
amounts  to  the  confession  of  the  party ; 
and  that  confession  is  evidence  against 
himself,  and  those  who  stand  in  his  i)lace. 
But  such  confession  can  be  no  evidence 
against  strangers.  Tlie  same  doctrine 
was  acted  upon  and  confirmed  by  the  same 
court,  in  Garwood  v.  Dennis,  4  Binn.  314. 
In  that  case,  the  court  further  held,  that 
a  recital  in  another  deed  was  evidence 
against  strangers,  where  the  deed  was  an- 
cient and  the  possession  was  consistent 
with  the  deed.  That  case  also  had  the 
peculiarity  belonging  to  the  present,  that 
the  possession  was  of  a  middle  nature, 
that  is,  it  might  not  have  been  held  solely 
in  consequence  of  the  deed,  for  the  party 
had  another  title ;  but  there  never  was 
any  possession  against  it.  There  was  a 
double  title,  and  the  question  was,  to 
which  the  possession  might  be  attributa- 
ble. The  court  thought,  that  a  suitable 
foundation  of  the  original  existence  and 
loss  of  the  recited  deed  being  laid  in  the 
evidence,  the  recital  in  the  deed  was  good 
corroborative  evidence,  even  against  stran- 
gers. And  other  authorities  certainly 
warrant  this  decision." 

1  Fairtitle  v.  Gilbert,  2  T.  K.  171 ;   Co. 
Lit.  3G3,  b. 

2  Terretty.  Taylor,  9  Cranch,43 ;  Jack- 
son V.  Matsdorf,  11  Johns.  97 ;   Jackson 
V.  Wright,  14  Johns.  183;    Mc Williams 
V.  Nisby,  2  Serg.  &  Kawl.  515  ;    Somes  v. 
Skinner,  3  Pick.  52.     [See  Blanchard  v. 
Ellis,  1  Gray,  195.     But  such  a  covenantj 
does  not  estop  the  grantor  from  claimingj 
a  way  of  necessity  over  the  land  granted.  I 
Brigham  v.  Smith,  4  Gray,  297.] 

8  Allen  V.  Sayward,  5  Greenl.  227. 


^5 


CHAP.  IV.]  PRESUMPTIVE   EVIDENCE.  31 

the  estate  to  the  grantee.^     Nor  is  a  feme  covert  estopped,  by  her 
deed  of  conveyance,  from  claiming  the  hiiid  by  a  title  subsequently 
acquired ;  for  she  cannot  bind  herself  personally  by  any  covenant.^ 
Neither  is  one  who  has  purchased  land  in  his  own  name,  for  the 
benefit  of  another,  which  he  has  afterwards  conveyed  by  deed  to 
his  employer,  estopped  by  such  deed,  from  claiming  the  land  by  an 
elder  and  after-acquired  title.^     Nor  is  the  heir  estopped   from 
questioning  the  validity  of  his  ancestor's  deed,  as  a  fraud  against 
an  express  statute.^     The  grantee,  or  lessee,  in  a  deed  poll,  is  not,|  9 
in  general,  estopped  from  gainsaying  any  thing  mentioned  in  the|  • 
deed ;  for  it  is  the  deed  of  the  grantor  or  lessor  only  ;  yet  if  such  I  '^ 
grantee  or  lessee  claims  title  under  the  deed,  he  is  thereby  estopped  I  . 
to  deny  the  title  of  the  grantor  .^ 

§  25.  It  was  an  early  rule  of  feudal  policy,  that  the  tenant  should 
not  be  permitted  to  deny  the  title  of  the  lord,  from  whom  he  had 
received  investiture,  and  whose  liegeman  he  had  become ;  but  as 
long  as  that  relation  existed,  the  title  of  the  lord  was  conclusively 
presumed  against  the  tenant,  to  be  perfect  and  valid.  And  though 
the  feudal  reasons  of  the  rule  have  long  since  ceased,  yet  other 
reasons  of  public  policy  have  arisen  in  their  place,  thereljy  preserv- 
ing the  rule  in  its  original  vigor.  A  tenant,  therefore,  by  inden- 
ture, is  not  permitted,  at  this  day,  to  deny  the  title  of  his  lessor, 
while  the  relation  thus  created  subsists.  It  is  of  the  essence  of 
the  contract  under  which  he  claims,  that  the  paramount  ownership 
of  the  lessor  shall  be  acknowledged  during  the  continuance  of  the 
lease,  and  that  possession  shall  be  surrendered  at  its  expiration. 
He  could  not  controvert  this  title  without  breaking  the  faith  which 
he  had  pledged.^  But  this  doctrine  does  not  apply  with  the  same 
force,  and  to  the  same  extent  between  other  parties,  such  as  re- 
leasor and  releasee,  where  the  latter  has  not  received  possession 


1  Marston    v.    Hobhs,  2    Mass.    433  ;  *  Doe  v.  Lloyd,  8  Scott,  93. 
Bearce  v.  Jackson,  4  ]\Iass.  408;  Twom-  ^  Co.  Lit.  863,  b;  Goddard's  case,  4  Co. 
bly  V.  Henly,  Id.  441 ;  Chapell  v.  Bull,  17  4.     But  he  is  not  always  concluded  by  re- 
Mass.  213.     [*  These  cases  have  not  been  citals  in  anterior  title  deeds.     See  supra,  § 
followed  in  some  of  the  other  states,  where  23,  note. 

it  is  held  that  covenants  of  seisin  bind  the  "  Com.  Dig.   Estoppel,    A.    2;    Craig. 

party  to  show  thai  he  had  stiod  title  at  the  Jus.  Feud.  lib.  3,  tit.  5,  §§  1,  2;  Bliglit's 

diite  of  the  covenant.     See  Richardson  v.  Lessee  i\  Rochester,  7  Wheat,  ooo,  o47. 

Dorr,  5  Vert.  K.  'J  ;  Hosmer,  Ch.  J.,  in  [The  assignee  of  a  lease,  who  enters  upon 

Lockwood  V.  Sturdevant,  6  Conn.  373.]  and  occujjies  the  premises,  is  estopped  in 

-  Jackson  r.  Vanderhayden,  17  Johns,  an  action  for  the  rent,  brought  against  him 

167  ;  [Lowell  v.  Daniels,  2  Gray,  IGl.]  by  the  original  lessor,  to  deny  the  validity 

•*  Jackson   r.   Mills,   13  Johns.  463;  4  of  the  assignment  l)y  the  original  lessee  to 

Kent,  Counn.  200,  261,  note.  him.     Blake  i\  Sanderson,  1  Gray,  332.J 


32  LAW    OF    EVIDENCE.  [PART   I. 

from  the  former.  In  such  cases,  where  the  party  ah-eady  in 
possession  of  kind,  under  a  claim  of  title  by  deed,  purchases  peace 
and  quietness  of  enjoyment,  by  the  mere  extinction  of  a  hostile 
claim  by  a  release,  without  covenants  of  title,  he  is  not  estopped 
from  denying  the  validity  of  the  title,  which  he  has  thus  far  extin- 
guished.i  Neither  is  this  vnla  apjilicd  in  the  case  of  a  lease  already 
expired;  provided  the  tenant  has  cither  quitted  the  possession,  or 
has  submitted  to  the  title  of  a  new  landlord ;  ^  nor  is  it  ai)plied  to 
the  case  of  a  tenant,  who  has  been  ousted  or  evicted  by  a  title 
paramount ;  or  who  has  been  drawn  into  the  contract  by  the  fraud  \ 
or  misrepresentation  of  the  lessor,  and  has,  in  fact,  derived  no 
benefit  from  the  possession  of  the  land.^  Nor  is  a  defendant  in 
ejectment  estopped  from  showing  that  the  party,  under  whom  the 
lessor  claims,  had  no  title  when  he  conveyed  to  the  lessor,  although 
the  defendant  himself  claims  from  the  same  party,  if  it  be  by  a 
subsequent  conveyance.* 

§  2G.  This  rule  in  regard  t^T  the  conclusive  effect  of  recitalsin 
deeds  is,~restrieted  to  the  recital  9£  things  in  particiliar,  as  beiug^ 
in  existence  at  the  time  of  the  execution  of  the  deed ;  and  do-es 
not  extend"to'the^ention  of  things  in  general  terms.  Therefore, 
if  one  be  bound  in  a  bond,  conditioned  to  perform  the  covenants 
in  a  certain  indenture,  or  to  pay  the  money  mentioned  in  a  certain 
recognizance,  he  shall  not  be  permitted  to  say  that  there  was  no 
such  indenture  or  recognizance.  But  if  the  b#nd  be  conditioned, 
that  the  obligor  shall  perform  all  the  agreements  set  down  by  A., 
or  carry  away  all  the  marl  in  a  certain  close,  he  is  not  estopped  by. 
this  general  condition  from  saying,  that  no  agreement  was  set 
down  by  A.,  or  that  there  was  no  marl  in  the  close.  Neither  does 
this  doctrine  apply  to  that  which  is  mere  description  in  the  deed, 
and  not  an  essential  averment ;  such  as  the  quantity  of  land ;  its 
nature,  whether  arable  or  meadow  ;  the  number  of  tons  in  a  vessel 
chartered  by  the  ton  ;  or  the  like  ;  for  these  are  but  incidental  and 

1  Fox    V.    Widgery,    4    Greeiil.    214;  tlie  tenant,  upon  the  lessor  afterwards  tlis- 

Rlii^lit's   Lessee   i>.   Rochester,  7   Wheat,  trainint;' for  rent,  was  not  Ktopi)ed  to  allege, 

5:55,   547;    Ham  i\   Ham,.  2   Shopl.    35L  tliat  the  riglit  of  the  latter  had  expired. 

Tims,  wliere  a  stranger  set  up  a  title  to  Downs  r.  Cooper,  2  Ad.  &  El.  252,  N.  s. 
tlie  i)rcniises,  to  wliich  tlie  lessor  submit-  -  England  r.  Slade,  4  T.  R.  681 ;  Balls 

ted,  directing  his  lessee  in  future  to  pay  v.  Wcstwood,  2  Campb.  11. 
the  rent  to  the  stranger ;  it  was  held,  that         ^  Hayne  >'.  Maltby,  3  T.  R.  438 ;  Hoarn 

the  lessor  was  estojjpcd  from  afterwards  v.  Tomlin,  I'eake's  Cas.  T.)l. 
treating  the  lessee  as  his  tenant;  and  that  *  Doe  v.  Payne,  1  Ad.  &  El.  538. 


CHAP.  IV,] 


PRESUMPTIVE   EVIDENCE. 


33 


collateral  to  the  principal  thing,  and  may  be  supposed  not  to  have 
received  the  deliberate  attention  of  the  parties.^ 

§  27.  In  addition  to  estoppels  by  deed,  there  are  two  classes  of 
admissions  which  fall  under  this  head  of  conclusive  presumptions 
of  law ;  namely,  solemn  admissions,  or  admissions  in  judicio,  which 
have  been  solemnly  made  in  the  course  of  judicial  proceedings, 
either  expressly,  and  as  a  substitute  for  proof  of  the  fact,  or  tacitly, 
by  pleading ;  and  unsolemn  admissions,  extra  judicium,  which  have 
been  acted  upon,  or  have  been  made  to  influence  the  conduct  of 
others,  or  to  derive  some  advantage  to  the  party,  and  which  cannot 
afterwards  be  denied  without  a  breach  of  good  faith.  Of  the  fqr- 
mer  class  are  all  agreements  of  counsel,  dispensing  with  legal 
proof  of  facts. ^     So  if  a  material  averinent,  well pleadedjls  passed 


1  4  Com.  Dip.  Estoppel,  A.  2;  Yelv. 
227  (by  Metcalt),  note  (1);  Doddington's 
case,  2  Co.  oo ;  Skipworth  r.  Green,  8 
Mod.  811 ;  1  Stra.  610,  s.  c.  Whether  the 
recital  of  tlie  payment  of  the  consider- 
ation-money, in  a  ileeil  of  conveyance,  tiills 
within  the  rule,  by  whieh  the  party  is 
estopped  to  deny  it,  or  belongs  to  the 
exceptions,  and  therefore  is  open  to  oppos- 
ing proof,  is  a  point  not  clearly  agreed. 
In  England,  the  recital  is  regarded  as  con- 
clusive evidence  of  payment,  binding  the 
parties  by  estoppel.  Shelly  v.  Wright, 
Willes,  y ;  Cosscns  v.  Cossens,  Id.  25 ; 
Rowntree  v.  Jacob,  2  Taunt.  141 ;  Lampon 
I'.  Corke,  5  B.  &  Aid.  600  ;  Baker  v.  Dew- 
ey, 1  B.  &  C.  704  ;  Hill  v.  Manchester,  and 
Salford  Water  Works,  2  B.  &  Aid.  544. 
See  also  Powell  v.  JNIonson,  3  Mason,  347, 
351,  356.  But  the  American  courts  have 
been  disposed  to  treat  the  recital  of  the 
amount  of  the  money  paid,  like  the  mention 
of  the  date  of  the  deed,  the  quantity  of 
land,  the  amount  of  tonnage  of  a  vessel, 
and  otiier  recitals  of  quantity  and  value,' 
to  which  the  attention  of  the  parties  is 
sujiposed  to  have  been  but  slightly  di- 
rected, and  to  which,  therefore,  the  princi- 
ple of  estoppels  does  not  apply.  Hence, 
though  tiie  party  is  estopped  from  denying 
the  conveyance,  and  that  it  was  for  a  val- 
uable consideration,  yet  the  weight  of 
American  authority  is  in  favor  of  treating 
the  recital  as  only  firimd  Jhcic  evidence  of 
the  amount  paid,  in  an  action  of  covenant 
by  the  grantee  to  recover  back  the  con- 
sideration, or,  in  an  action  of  assiiin/isit  by 
the  grantor,  to  recover  the  price  which  is 
yet  unpaid.  The  principal  cases  are, — 
in  Maasfichiisctls,  Wilkinson  r.  Seott,  17 
Mass.  24'J;  Clapp  r.  Tirrell,  20  Tick.  247  ; 
Livermore  v.  Aldi-ich,  5  Cush.  431;  —  in 


Maine,  Schilenger  v.  McCann,  6  Greenl. 
364;  Tyler  v.  Carlton,  7  Greenl.  175; 
Emmons  v.  Littletield,  1  Shepl.  233  ;  Bur- 
bank  V.  Gould,  3  Sliepl.  118  ;  —  in  Vtinwnl, 
Beach  v.  Packard,  10  Verm.  96  ;  —  in  Mew 
llampsliire,  Morse  r.  IShattuck,  4  New 
Hamp.  229 ;  Pritchard  v.  Brown,  Id.  397 ; 
—  in  Connecticut,  Belden  v.  Seymour,  8 
Conn.  304;  —  in  New  York,  Shepherd  v. 
Little,  14  Johns.  210;  Bowen  r.  Bell,  20 
Johns.  388  j  Whitbeck  v.  Whitbeck,  9 
Cowen,  266;  McCrea  v.  Purmort,  16 
Wend.  460; — in  Pennsi/Ivania,  Weigly  v. 
Weir,  7  Serg.  &  Bawl.  311;  Watson  v. 
Blaine,  12  Serg.  &  Rawl.  131 ;  Jack  v. 
Dougherty,  3  Watts,  151;  — in  Maryland, 
Higdon  V.  Thomas,  1  Har.  &  Gill,  139; 
Lingan  v.  Henderson,  1  Bland,  Ch.  236, 
249;  —  in  Virc/inia,  Duval  v.  Bibb,  4  Hen. 
&  Munf.  113;  JIarvey  v.  Alexan<lcr,  1 
Randolph,  219  ;  —  in  South  Carolina,  Curry 
V.  Lyles,  2  Hill,  404 ;  Garret  v.  Stuart,  1 
McCord,  514;  —  in  Alahiuna,  Mead  v.  Ste- 
ger,  5  Porter,  4U8,  507;  —  in  Tennexsce, 
Jones  V.  Ward,  10  Ycrger,  160,  166;  —  in 
Kentuckii,  Hutchinson  v.  Sinclair,  7  Mon- 
roe, 29i,  293;  Gully  v.  Grubbs,  1  J.  J. 
Marsh.  389.  The  courts  in  North  Carolina 
seem  still  to  hold  the  recital  of  payment  as 
conclusive.  Brocket  r.  Foscue,  1  Hawks, 
64;  Spiers  v.  Clay,  4  Hawks,  22;  Jones 
V.  Sasser,  1  Dev.  &  Batt.  452.  And  in 
•  Louisiana,  it  is  nuule  so  by  legislative  en- 
actment. Civil  Code  of  Louisiana,  Art. 
2234;  Forest  v.  Shores,  11  Louis.  416. 
See  also  Steele  v.  Worthington,  2  Ohio  K. 
350;  [and  see  Cruise's  Dig.  (Greenl.  2(1 
ed.)  tit.  32,  ch.  2,  §  38,  note;  ch.  20,  §  52, 
note  (Greenl.  2d  ed.  vol.  2,  pp.  322,  607) J. 

-  See  /';/;■(?,§§  169,  170,  186,  204,  205; 
Kohn  V.  Marsh,  3  Rob.  (Louis.)  R.  48. 


34  LAW   OF   EVIDENCE.  [PART   I. 

over  by  the  adverse  party,  without  dc}iial,  whether  it  he  by  confes- 
sipiij  or  by  2->leading  some  other  matter,  or  by  demurring,  in  law,  it 
is_therebj  conclusively  admitted.^  So  also  the  payment  of  money 
into  court,  under  a  rule  for  that  pur])Osc,  in  satisfaction  of  so  much 
of  the  claim  as  the  party  admits  to  be  due,  is  a  conclusive  admission 
of  the  character  in  which  the  plaintiff  sues,  and  of  his  claim  to  the 
amount  paid.^  The  latter  class  com])rchends,  not  only  all  those 
declarations,  but  also  that  line  of  conduct  by  which  the  party  has 
induced  others  to  act,  or  has  acquired  any  advantage  to  himself.^ 
Thus,  a  woman  cohabited  with,  and  openly  recognized  by  a  man, 
as  his  wife,  is  conclusively  jTresumed  to  be  such,  when  he  is  sued 
as  her  husband,  for  goods  furnished  to  her,  or  for  other  civil  lia- 
bilities growing  out  of  that  relation.^  So  where  the  sheriff  returns 
any  thing  as  fact,  done  in  the  course  of  his  duty  i^i  f^^c  service  of  * 
precept,  it  is  conclusively  presumed  to  be  true  against  him.^  And 
if  one  party  refers  the  other  to  a  third  person  for  information  con- 
cerning a  matter  of  mutual  interest  in  controversy  between  them, 
the  answer  given  is  conclusively  taken  as  true,  against  the  party 
referring.*^  This  subject  will  hereafter  be  more  fully  considered, 
under  its  appropriate  title.'' 

§  28.  Conclusive  presumptions  of  law  are  also  made  in  respect 
to  infants  and  married  women.  Thus,  an  infant  under  the  ago 
of  seven  years  is  conclusively  presumed  to  be  inca[)able  of  com- 
mitting any  felony,  for  want  of  discretion;^  and  under  fourteen, 
a  male  infant  is  presumed  incapable  of  committing  a  rape.^  A 
female  under  the  age  of  ten  years  is  presumed  incapable  of  con- 
senting to  sexual  intercourse.^^  Where  the  husband  and  wife 
cohabited  together,  as  such,  and  no  impotency  is  proved,  the 
issue  is  conclusively  presumed  to  be  legitimate,  though  the  wife  is 
proved  to  have  been  at  the  same  time  guilty  of  infidclity.^^     And 


1  Young  V.  Wright,   1   Campb.   139 ;  ^  Simmons  ?'.  Bradford,  15  Mass.  82. 
Wilson  V.  Turner,  1  Taunt.  398.    But  if  a  «  Lloyil  v.  Willan,  1  Esp.  178;   Deles- 
deed  is  admitted  in  pleading,  tliere  must  line  v.  Greenland,  1  Ba.y,  4.'J8;  Williams 
still  be  proof  of  its  identity.     Johnson  v.  v.  Innes,  1  Campb.  oG4 ;  Burt  v.  Palmer,  5 
Cottingham,  1  Arrast.  Macartn.  &  Ogle,  Esp.  145. 
R.  11.  -  Sec //(/"ra,  §  109  to  212. 

^  Cox  i:  Parrv,  1  T.  R.  404 ;  Watkins  «  4  Bl.  Comm.  23.    [See  3  Greenl.  Ev. 

V.  Towers,  2  T.'K.  275;  Griffiths  r.  Wil-  (4t1i  ed.)  p.  4.] 

liams,  1  T.  R.  710.     [See  ?Vm,  §  20.5.]  «1    Hal.    P.    C.    G30 ;    1    Rus.^ell    on 

3  See  infra,  §§  184,  195,  190,  207,  208.  Crimes,  801 ;  Rex  v.  Phillips,  8  C.  &  P. 

*  Watson   V.   Threlkeld,  2   Esp.   637;  736;    Re.x  v.  Jordan,  9  C.  &  P.  118;   [8 

Monro  v.  De   Chemant,  4   Cam])b.   215;  Greenl.  Ev.  (4th  ed.)  §§  4,  215.] 

Robinson  v.  Nahon,  1  Campb.  245';  i)ost,  ^"  1  Russell  on  CJrimes,  810. 

§  207.  11  Cope  V.  Cope,  1  Mood.  &  Rob.  269, 


CHAP.  lY.]  PRESUMPTIVE  EVIDENCE.  35 

if  a  wife  act  in  company  with  lier  liusband  in  the  commission  of 
a  felony,  other  than  treason  or  homicide,  it  is  conclusively  pre- 
sumed, that  she  acted  under  his  coercion,  and  consequently  Avitli- 
out  any  guilty  intent.^ 

§  29.  AVhcre  the  succession  to  estates  is  concerned,  the  ques- 
tion, which  of  two  persons  is  to  be  presumed  the  survivor,  where 
both  2->erished  in  the  same  calamity^  but  the  circumstances  of  their 
deaths  are  unknown,  has  been  considered  in  the  Roman  law,  and 
in  several  other  codes ;  but  in  the  common  law,  no  rule  on  the 
subject  has  been  laid  down.  By  the  Roman  law,  if  it  were  the 
case  of  a  father  and  son,  perishing  together  in  the  same  shipwreck 
or  battle,  and  the  son  was  under  the  age  of  puberty,  it  was  pre- 
sumed that  he  died  first,  but  if  above  that  age,  that  he  was  the 
survivor;  upon  the  principle,  that  in  the  former  case  the  elder 
is  generally  the  more  robust,  and  in  the  latter,  the  younger .^ 
The  French  code  has  regard  to  the  ages  of  fifteen  and  sixty ; 
presimiing  that  of  those  under  the  former  age  the  eldest  survived] 
and  that  of  those  above  the  latter  age  the  youngest  survived.  If 
the  parties  were  between  those  ages,  but  of  different  sexes,  the 
*male  is  presumed  to  have  survived ;  if  they  were  of  the  same  sex, 
the  presumption  is  in  favor  of  the  survivorship  of  the  younger, 
as  opening  the  succession  in  the  order  of  nature.-^  The  same 
rules  were  in  force  in  the  territory  of  Orleans  at  the  time  of  its 
cession  to  the  United  States,  and  have  since  been  incorporated 
into  the  code  of  Louisiana.* 


276  ;  Morris  v.  Davies,  3  C.  &  P.  215 ;  St.  exceptions  for  the  benefit  of  mothers,  pa- 
George  V.  St.  Margaret,  1  Salk.  123  ;  Ban-  trons,  and  benefieiaries. 
bury'Peerage  case,  2  Selw.  N.  P.  (by  ^  Code  Civil,  §§  720,  721,  722 ;  Diiran- 
Wheaton),  558;  1  Sim.  and  Stu.  153,  s.  ton,  Cours  de  Droit  Franqais,  torn.  6,  pp. 
c;  Eex  v.  Luffe,  8  East,  193.  But  if  39,  42,  43,  48,  67,  6'J ;  Kogron,  Code  Civil 
they  lived  apart,  though  within  such  dis-  Expli.  411,  412;  Toullier,  Droit  Civil 
tance  as  afforded  an  opportunity  for  inter-  Franqais,  torn.  4,  pp.  70,  72,  73.  By  the 
com-se,  the  presumption  of  legitimacy  of  Mahometan  Law  of  India,  when  relatives 
the  issue  may  be  rebutted.  Morris  v.  thus  perish  together,  "  it  is  to  be  pre- 
Davis,  5  C.  &  Fin.  163.  Non-access  is  not  sumed,  that  they  all  died  at  the  same 
presumed  from  the  foct,  that  the  wife  moment ;  and  the  ])roperty  of  each  shall 
lived  in  adultery  with  another ;  it  must  be  pass  to  his  living  heirs,  without  any  por- 
proved  aliunde^  Regina  v.  Mansfield,  1  tion  of  it  vesting  in  his  companions  in 
G.  &  Dav.  7 ;  [Hemmeriway  v.  Towner,  misfortune."  See  Baillie's  Moobummu- 
1  Allen,  209 ;  Phillips  v.  Allen,  2  Allen,  dan  Law  of  Inheritance,  172.  Such  also 
453;  Doherty  v.  Clark,  3  Allen,  151.]  was  the  rule  of  the  ancient  Danish  Law. 

1  4  Bl.  Comm.  28,  29 ;  Anon.  2  East,  "  Filius  in  communione  cum  patre  et  nia- 

P.  C.  559;  post,  vol.  3,  §§  3,  4,  7.  tre  dcnatus,  pro  non  nato  habetur."    An- 

-  Dig.  lib.  34,  tit.  5;  De  rebus  dubiis,  cher.  Lex  Cimhrica,  lib.  1,  c.  9,  p.  21. 
1.  9,  §§1,3;  Ibid.  1.  16,  22,  23 ;  Menochi-  *  Civil  Code  of  Louisiana,  art.  930-933 ; 

us  de  Pra?sumpt.  lib.  1,  Qutest.  x.  n.  8,  9.  Digest  of  the  Civil  Laws  of  the  Territory 

This  rule,  however,  was  subject  to  some  of  Orleans,  art.  60-63. 


36  LAW    OF    EVIDENCE.  [PART   I. 

§  30.  This  question  first  arose,  in  common-law  courts,  upon 
a  motion  for  a  mandamus,  in  the  case  of  General  Stanwix,  who 
perished,  together  with  his  second  wife,  and  his  daughter  by 
a  former  marriage,  on  the  passage  from'  Dublin  to  England ;  the 
vessel  in  which  they  sailed  having  never  been  hoard  from.  Ilere- 
upon  his  nephew  applied  for  letters  of  administration,  as  next 
of  kin  ;  which  was  resisted  by  the  maternal  uncle  of  the  daughter, 
who  claimed  the  effects  upon  the  ];)resumption  of  the  Roman  law, 
that  she  Avas  the  survivor.  But  this  point  was  not  decided,  the 
court  decreeing  for  the  nephew  upon  another  ground ;  namely, 
that  the  question  could  properly  be  raised  only  u})on  the  statute 
of  distributions,  and  not  upon  an  application  for  administration 
by  one  clearly  entitled  to  administer  by  consanguinity.^  The 
point  was  afterwards  raised  in  chancery,  where  the  case  was,  that 
the  father  had  bequeathed  legacies  to  such  of  his  children  as 
should  be  living  at  the  time  of  his  death  ;  and  he  having  perished, 
together  with  one  of  the  legatees,  by  the  foundering  of  a  vessel 
on  a  voyage  from  India  to  England,  the  question  was,  whether  the 
legacy  was  lapsed  by  the  death  of  the  son  in  the  lifetime  of  the 
father.  The  Master  of  the  Rolls  refused  to  decide  the  question* 
by  presumption,  and  directed  an  issue,  to  try  the  fact  by  a  jury.^ 
But  the  Prerogative  Court  adopt  the  presumption,  that  both 
perished  together,  and  that  therefore  neither  could  transmit  rights 
to  the  other.^  In  the  absence  of  all  evidence  of  the  particular 
circumstances  of  the  calamity,  probably  this  rule  will  be  found 

1  Rex  V.  Dr.  Hay,  1  W.  B!.  640.  The  .also  raised,  but  not  disposed  of,  in  Mcehr- 
matter  was  afterwards  compromised,  upon  in<j  v.  Mitchell,  1  Barh.  Cli.  II.  2G4.  The 
the  recommendation  of  Lord  Mansfield,  subject  of  presumed  survivorship  is  fully 
who  said  he  knew  of  no  legal  princijile  on  treated  by  Mr.  Burge,  in  his  Commenta- 
■which  he  could  decide  it.  See  '1  I'liillim.  ries  on  Colonial  and  Foreign  Laws,  vol.  4, 
268,  in  note;  Fearne's  Posth.  Works,  o8.  j).   11-^^9.     In   Chancery  it  has   recently 

2  Mason  v.  Mason,  1  Meriv.  308.  been  held,  that  a  presumption  of  priority 
*  Wright  V.  Netherwood,  '2  Salk.  593,     of  death  might  be  raised  from  the  compar- 

note  (a)  by  Evans ;    more  fully  reported  ative  age,  health,  and  strength  of  the  par- 

under  the  name  of  Wright  w.  Sarnnida,  2  ties;  and,  therefore,  where  two  brothers 

Phillim.  266-277,  note  (c) ;  Taylor?;.  Dip-  jierished  by  shipwreck,  the  circumstances 

lock,  2  Phillim.  261,  278,  280;  Selwyn's  being  wholly  unknown,  the  elder  being 

case,  3  llagg.  Eccl.  K.  748.     In  the  goods  tiie  master,  and  the  younger  the  second 

of  Murray,  1  Curt.  596;   Satterthwaite  v.  mate  of  the  ship,  it  was  presumed  that  the 

Powell,  1  Curt.  705.     See  also  2  Kent's  latter  died  first.     Sillick  v.  Booth,  1  Y.  & 

CoMim.  435,  436  (4tli  ed.),  note  (b).     In  C.    New    Cas.    117.      [In    Underwood   v. 

Hie  i)rief  note  of  Colvin  ;;.  II.  M.  Procura-  Wing,  31  Eng.  Law  &  Eq.  293,  where  a 

tor-Gen.,  1  Ilagg.  Ecc^l.  R.  92,  vThere  the  husband,  wife,  and  children  were  swept 

husband,  wife,  and  infant  child  (if  any)  from  the  deck  of  a  vessel  by  the  same 

perished  together,  the  court  .seem  to  have  wave,  and  went  down  together,  it  was  held, 

held,  that  the  prima  facie  presumption  of  tliat,  in  the  absence  of  evidence,  the  court 

law  was  that  the  husband  survived.     But  would  not  i)resume  that  the  husband  sur- 

the  point  was  not  much  moved.     It  was  vived  the  wife.] 


CHAP.  IV.]  PRESUMPTIVE   EVIDENCE.  37 

the  safest  and  most  convenient ;  ^  but  if  any  circumstances  of  tlie 
death  of  either  party  can  be  proved,  there  can  be  no  inconvenience 
in  submitting  the  question  to  a  jury,  to  whose  province  it  pecu- 
liarly belongs. 

§  31.  Conclusive  presumptions  of  law  are  not  unknown  to  the 
law  of  nations.  Thus,  if  a  neutral  vessel  be  found  carrying  de- 
spatches of  the  enemy  between  different  parts  of  the  enemy's 
dominions,  their  effect  is  presumed  to  be  hostile.^  The  spoliation 
of  papers,  by  the  captured  party,  has  been  regarded,  in  all  the 
States  of  Continental  Europe,  as  conclusive  proof  of  g-uilt ;  but  in 
England  and  America,  it  is  open  to  explanation,  unless  the  cause 
labors  under  heavy  suspicions,  or  there  is  a  vehement  presumption 
of  bad  faith  or  gross  prevarication.^ 

§  32.  In  these  cases  of  conclusive  presumption,  the  rule  of  law 
merely  attaches  itself  to  the  circumstances,  when  proved ;  it  is 
5L0t_deduced  from  them.  It  is  not  a  rule  of  inference  from  testi- 
mony ;  but  a  rule  of  protection,  as  expedient,  and  for  the  general 
good.  It  does  not,  for  example,  assume  that  all  landlords  have 
good  titles ;  but  that  it  will  be  a  public  and  general  inconvenience 
to  suffer  tenants  to  dispute  them.  Neither  does  it  assume,  that 
all  averments  and  recitals  in  deeds  and  records  are  true ;  but, 
that  it  will  be  mischievous,  if  parties  are  permitted  to  deny  them. 
It  does  not  assume  that  all  simple  contract  debts,  of  six  years' 
standing,  are  paid,  nor  that  every  man,  quietly  occupying  land 
twenty  years  as  his  own,  has  a  valid  title  by  grant ;  but  it  deems 
it  expedient  that  claims,  opposed  by  such  evidence  as  tlie  lapse 
of  those  periods  affords,  should  not  be  countenanced,  and  that 
society  is  more  benefited  by  a  refusal  to  entertain  such  claims, 
than  by  suffering  them  to  be  made  good  by  proof.  In  fine,  it 
does  not  assume  the  impossibility  of  things  which  are  possible; 
on  the  contrary,  it  is  founded,  not  only  on  the  possibility  of  their 
existence,  but  on  their  occasional  occurrence ;   and  it  is  against 

1  It  was  so  held  in  Cove  v.  Lca(!li,  8  on  evidence,  and  if  the  evidence  does  not 

Met.  371.     And  see  Moehring  ?'.  Mitchell,  establish  the  survivorship  of  any  one,  tlie 

1  Barb.  Ch.  K.  264.     [*See  Eedfield  on  law  will  treat  it  as  a  matter  incajiable  of 

Wills,  Part  II.  §  1,  n.  1.     In  Wing  v.  An-  being-  determined.     The  burden  of  proof 

grave,  8  n.  L.  Cas.  183,  it  is  held  that  there  is   on  the   person   asserting   the  affii-ma- 

is  no  presumption  of  law  arising  from  age  tive.] 

or  sex  as   to  survivorship  among  persons  -  The  Atalanta,  6  Eob.  Adm.  440. 

whose  death  is  occasioned  by  one  and  the  ^  The  I'izarro,  2  Wlieat.  227,  241,  242, 

same  cause  ;  nor  any  presumption  of  law  note  (e) ;  The  Hunter,  1  Dods.  Adm.  480, 

that  all  died  at  the  same  time :   but  the  486. 
question  is  one  of  fact  depending  wholly 

VOL.  I.  4 


38  LAW   OP  EVIDENCE.  [PART   I. 

the  mischiefs  of  their  occurrence,  that  it  interposes  its  protecting 
prohibition.^ 

§  33.  The  SECOND  class  of  presumptions  of  law,  answering  to 
the  prcesiimptioncs  juris  of  the  Roman  hxw,  which  may  always  be 
overcome  by  opposing  proof,  ^  consists  of  those  termed  disputable 
presumptions.  These,  as  well  as  the  former,  are  the  result  of  the 
general  experience  of  a  connection  between  certain  facts,  or 
things,  the  one  being  usually  found  to  be  the  companion,  or  the 
effect  of  the  other.  The  connection,  however,  in  this  class,  is  not 
so  intimate,  nor  so  nearly  universal,  as  to  render  it  expedient, 
that  it  should  be  absolutely  and  imperatively  presumed  to  exist 
in  every  case,  all  evidence  to  the  contrary  being  rejected ;  but  yet 
it  is  so  general,  and  so  nearly  universal,  that  the  law  itself,  with- 
out the  aid  of  a  jury,  infers  the  one  fact  from  the  proved  existence 
of  the  other,  in  the  absence  of  all  opposing  evidence.  In  this 
mode,  the  law  defines  the  nature  and  amount  of  the  evidence, 
which  it  deems  sufficient  to  establish  a  primd  facie  case,  and  to 
throw  the  burden  of  proof  on  the  other  party  ;  and  if  no  o})posing 
evidence  is  offered,  the  jury  are  bound  to  find  in  favor  of  the 
presumption.  A  contrary  verdict  would  be  liable  to  be  set  aside, 
as  being  against  evidence. 

§  34.  The  rules  in  this  class  of  presumptions,  as  in  the  former, 
have  been  adopted  by  common  consent,  from  motives  of  public 
policy,  and  for  the  promotion  of  the  general  good ;  yet  not,  as  in 
the  former  class,  forbidding  all  further  evidence ;   but  only  ex- 
cusing or  dispensing  with  it,  till  some  proof  is  given  on  the  other 
side  to  rebut  the  presumption  thus  raised.     Thus,  as  men  do  not , 
generally  violate  the  penal  code,  the  law  presumes  every  man  |  \^ 
innocent ;  but  some"  men  do  transgress  it,  and  therefore  evidence_|     ' 
is.  received  to  repel  this  presumption.     This  legal  presumption  | 
of  innocence  is  to  be  regarded  by  the  jury,  in  every  case,  as 
matter  of  evidence,  to  the  benefit  of  which  the  party  is  entitled. 
And  where  a  criminal  charge  is  to  be  proved  by  circumstantial 
evidence,  the  proof  ought  to   bo  not   only  coiisistent  with   the 
prisoner's  guilt,  but  inconsistent  with  any  other  rational   con- 
jgijig^2jl^_,0n  the  other  hand,  as  men  seldom  do  unlawful  acts 
with  innocent  intentions,  the  law  jn-esumes  every  act,  in  itself 
unlawful,  to  have  been  criminally  intended,  until  the  contrary 

1  See  6  Law  Mao;.  348,  355,  356.  8  Hodge's  case,  2  Lewin,  Cr.  Cas.  227, 

2  Heinnec.  ad.  Tand.  Pars  iv.  §  124.         per  Aldeison,  B. 


CHAP.  IV.] 


PRESUMPTIVE    EVIDENCE. 


39 


appears.     Thus,  on  a  charge  of  murder,  malice  is  presumed  from 

ythe  fact  of  Trilling,  unaccompanied  with  circumstances  of  extenuar  4v^ 
tion  ;  and  the  burden  of  disproving  the  malice  is  thrown  upon  \  f^^S, 
the   accused. 1      The    same   presumption    arises   in   civil   actions,  , 
where  the  act  complained  of  was  unlawful.^     So,  also,  as  men 
generally  own  the  personal  property  they  possess,  proof  of  pos-    djl^ 


1  Foster's    Crown  Law,  255 ;    Rex  v. 
Farrington,  Russ.  &  Ry.  207.     Tliis  point 
was  re-examined  and  discussed,  with  great 
ability  and   research,  in    York's   case,  'J 
Met.  93,  in  which  a  majority  of  the  learned 
judges  affirmed  the  rule  as  stated  in  the 
text.     Wilde,  J.,  however,  strongly  dis- 
sented ;  maintaining,  with  great  force  of 
reason,  that  the  rule  was  founded  in  a 
state  of  society  no  longer  existing ;  that  it 
was  inconsistent  with  settled  principles  of 
criminal  law  ;    and  that  it  was  not  sup- 
ported by  the  weight  of  authority.     He 
was  of  opinion  that  the  following  conclu- 
sions were  maintained  on  sound  princijiles 
of   law   and   manifest   justice:    1.    That 
when  the  facts  and  circumstances  accom- 
panying a  homicide  are  given  in  evidence, 
the  question  whether  the  crime  is  murder 
or  manslaughter  is  to  be  decided  upon  the 
evidence,  and  not  upon  any  presumption 
from  the  mere  act  of  killing.     2.  That  if 
there  be  any  such  presumption,  it  is  a  pre- 
sumption of  fact ;  and  if  the  evidence  leads 
to  a  reasonable  doubt  whether  the  pi'e- 
simiption  be  well  founded,  that  doubt  will 
avail  in  favor  of  the  prisoner.     3.    That 
ithe  burden   of  proof,  in   every  criiiunaj 
lease,  is  on  the  government,  to  prove  all 
'the  material  allegations  in  the  indictment ; 
[>.  ^     ana  It,  on  the  whole  evidence,  the  jury 
\i    liave  a  reasonable  doubt  whether  the  de- 
/'    fendant  is  guilty  of  the  crime  charged, 
;they  are  bound  to  acquit  him.     [In  Com- 
Imonwealtli  r.  Hawkins,  3  Gray,  405,  Chief 
'  Justice  Shaw  said,  that  the  doctrine  of 
York's  case  is,  that  where  the  killing  is 
proved  to  have  been  committed  by  the 
defendant,  and  iiotliiiu;  fmthrr  is  s/ioim,  the 
presumption  of  law  is  that  it  was  malicious 
and  an  act  of  murder ;  and  that  it  was  in- 
appUcable  to  a  case  where  the  circumstan- 
ces  attending   the    homicide   were    fully 
shown  by  the  evidence ;   that  in  such  a 
case,  the  homicide  being  conceded  and  no 
excuse  or  justitication  being  shown,  it  was 
either  murder  or  manslaughter ;  and  that 
the  jury  upon  all  the  circumstances  must 
be  satisfied  beyond  a  reasonable  doubt  that 
it  was  done  with  malice  before  they  coidd 
find  the  defendant  guilty  of  miirder.    This 
would    ai)]K'ar    to    qualify   materially    the 
rule  in  York's  case  as  it  has  heretolbre 
been  miderstood.    [*This  question  is  inci- 


dentally discussed  by  us  in  State  v.  Mc- 
Donnell, 32.Vt.  Hep.  491,  in  a  case  of  hom- 
icide by  mutual  combat;  and,  although 
not  called  to  decide  the  very  jjoint  involved 
in  York's  case,  supra,  we  certainly  formed 
a  very  decided  opinion  in  favor  of  the 
views  embraced  in  the  very  able  dissent- 
ing opinion  of  Mr.  Justice  Wilde.]  See 
nifra,  §  81  b.] 

2  In  Bromage  v.  Proser,  4  B.  &  C.  247, 
255,  256,  which  was  an  action  for  words 
spoken  of  the  plaintifls,  in  their  business 
and  trade  of  bankers,  the  law  of  implied  • 
or  legal  malice,  as  distinguished  ti'om  mjQ- 
ice  in  fact,  was  clearly  expounded  l)y  Mi-. 
Justice  Bayley,  in  tlie  following  terms : 
"Malice,  in  tlie  common  acceptation,! 
means  ill-will  against  a  person,  but  in  its' 
legal  sense,  it  means  a  wrongful  act,  donel 
intentionally  without  just  cause  or  excusej 
If  I  give  a  "perfect  stranger  a  blow  likely".' 
to  produce  death,  I  do  it  of  malice,  because 
I  do  it  intentionally  and  without  just  cause 
or  excuse.  If  I  maim  cattle,  without 
knowing  whose  they  are,  if  I  poison  a 
fishery,  without  knowing  the  owner,  I  do 
it  of  malice,  because  it  is  a  wrongfiU  act, 
and  done  intentionally.  If  I  am  arraigned 
of  felony,  and  wilfully  stand  mute,  1  am 
said  to  do  it  of  malice,  because  it  is  inten- 
tional and  without  just  cause  or  excuse. 
Russell  on  Crimes,  G14,  n.  1.  And  if  I 
traduce  a  man,  whether  I  know  him  or 
not,  and  whether  I  intend  to  do  him  an 
injury  or  not,  I  apprehend  the  law  consid- 
ers it  as  done  of  malice,  because  it  is  wrong- 
ful and  intentional.  It  eiiually  works  an 
injury,  whether  I  meant  to  produce  an  in- 
jury or  not,  and  if  I  had  lu)  legal  excuse 
for  the  slander,  why  is  he  not  to  have  a 
remedy  against  me  for  the  injury  it  pro- 
duces ";  And  I  apiMchend  the  law  recog- 
nizes the  distinction  between  the^e  two 
descriptions  of  malice,  malice  in  tact,  and 
malice  in  law,  in  actions  of  shmder.  In 
an  ordinary  action  for  words,  it  is  sufficient 
to  charge, 'that  the  defendant  spoke  them 
falsely ;  it  is  not  necessary  to  state  that 
they  were  spoken  nuiliciously.  This  is  so 
lai(i  down  in  Styles,  892,  and'was  adjudged 
ui)on  error  in  Mercer  r.  Sparks,  Uwen, 
51 ;  Noy,  35.  The  objection  there  was, 
that  the  words  were  not  charged  to  have 
been  spoken  maliciously,  but   the   court 


4 


40  LAW   OF   EVIDENCE.  [PART  I. 

:  session  is  presumptive  proof  of  ownership.^  But  possession  of 
the  fruits  of  crime  recently  after  its  commission,  is  lyrimd  facie 
evidence  of  guilty  possession ;  and  if  unexplained  either  by  direct 
evidence,  or  by  the  attending  circumstances,  or  by  the  character 
and  habits  of  life  of  the  possessor,  or  otherwise,  it  is  taken  as 
conclusive.^  This  rule  of  jtrcsumption  is  not  confiiicd  to  the  case 
of  theft,  but  is  applied  to  all  cases  of  crime,  even  the  highest  and 
most  penal.  Thus,  upon  an  indictment  for  arson,  proof  that 
property  which  was  in  the  house  at  the  time  it  was  burnt,  was 
soon  afterwards  found  in  the  possession  of  the  prisoner,  was  held 
to  raise  a  probable  presumption,  that  he  was  present,  and  con- 
cerned in  the  offence.^  •  The  like  presumption  is  raised  in  the 
case  of  murder,  accompanied  by  robbery  ;^  and  in  the  case  of  the 
possession  of  an  unusual  quantity  of  counterfeit  money .^ 

§  35.  This  presumption  of  innocence  is  so  strong,  that  even  where 
the  guilt  can  be  established  only  by  proving  a  negative,  that  nega- 

Itive  must,  in  most  cases,  be  proved  by  the  party  alleging  the 
guilt ;  though  the  general  rule  of  law  devolves  the  burden  of  proof 
on  the  party  holding  the  affirmative.  Thus,  where  the  plaintiff 
complained  that  the  defendants,  who  had  chartered  his  ship,  had 
put  on  board  an  article  highly  intlai^imablc  and  dangerous,  without 
givmg  notice  of  its  nature  to  the  master,  or  others  in  charge  of  the 

answered  tliat  the  words  wore  themselves  ^  [Armory  v.  Delamirie,  1  Stra.  505 ; 

malicious   and   slanderous,  and  therefore  Mafjee  ?;.  Scott,  9  Cush.  150 ;  Fish  v.  Skut, 

the  jud[,mient  was  athrined.     But  in  ac-  21  Barb.  333  ;  MiUay  v.  Butts,  35  Maine, 

tions   for  such  slander  as  is  primet  facie  139 ;  Linscott  v.  Trask,  lb.  150.] 

excusable  on  account  of  the  cause  of  speak-'         ^  Hq^^  ^.^ ^  2  C.  &  P.  359  ;  Eegina 

ingf  or  writini:;  it,  as  in  the  case  of  servants'  v.  Coote,  1  Armst.  Macartn.  &  Ogle,  K. 

characters,  confidential  advice,  or  conunu-  337  ;   The  State  v.  Adams,  1  Hay  w.  463  ; 

nicatlou  to  persons  who  ask  it,  or  have  a  Wills    on    Circumstantial    Evidence,   67. 

right  to  e.xpect  it,  malice  in  fact  must  be  Where  the  things  stolen  are  such  as  do 

proved  by  the  plaintiff;  and  in  Edmondson  not  pass  from  liand  to  hand  (e.  g.  the  ends 

V.  Stevenson,  liuW.  N.  P.  8,  Lord  Mansfield  of  unfinished  woollen  clothes),  their  being 

takes  the  distinction  between  these  and  found   in   the   jjrisoner's   possession,  two 

ordinary  actions  of  slander."  numths  after  they  were  stolen,  is  sufficient 

[In  Connnonwealth  v.  Waldcn,  3  Cush.  to  call  for  an  ex'planation  from  him  how 

659,  561,  wiiich  was  an  indictment  under  he  came  by  them,  and  to  be  considered  by 

a  statute,  for  malicious  mischief  in  wilfully  the  jury.    Kex  v.  Partridge,  7  C.  &  1*.  551. 

and  imilirioiislii  injuring  a  certain  animal,  Furtum  ])ra'sumitur  connnissum   ab  illo, 

by  shooting,  the   court  below  ruled   that  penes  quem  res  furata  invcnta  fuerit,  adeo 

""maliciously "  meant  "  the  wilfully  doing  ut  si  non  docuerit  a  quo  rem  habueritj 

of  any  act  prohibited  by  law,  and  for  wliicii  juste,  ex   ilia  inventione,   poterit   subjici 

the  (rcftiidant  had  no  lawful  excuse."    The  tormentis.     Mascard.  De  I'robat.   vol.  2, 

Suiircine  Court  held  the  instructions  erro-  Concl.  834;  Menoch.  De  Pra;sumpt.  Liv. 

iieous,  and  decided  that  to  make  the  act  5,  Pra^sumpt.  31.     [SeeposC,  vol.  3,  §§  31, 

"maliciously"   done,   the   jury  must  y'g  32,33.1 

sati,«fied  tliat  it  was  done  either  out  of"  a  ^  Pickman's  case,  2  East,  P.  C.  1035. 

spiritof  wanton  cruelty  or  wicked  revenge.  *  Wills  on  Circumst.  Evid.  72. 

See  4  Bl.  Comm.  244  ;  Jacob's  Law  Die.  ^  ji^x  v.  Fuller  et  al.,  Puss.  &  Ry.  308. 

by  Tomhn,  tit.  "  Miscliief,  Malicious."] 


CHAP.  IV.]  PRESUMPTIVE   EVIDENCE.  41 

ship,  whereby  the  vessel  was  burnt ;  he  was  hekl  bound  to  prove 
this  negative  averment.^  In  some  cases,  the  presumption  of 
innocence  has  been  deemed  .sufficiently  strong  to  overthrow  the 
presumption  of  life.  Thus,  where  a  woman,  twelve  months  after 
her  husband  was  last  heard  of,  married  a  second  husband,  by 
whom  she  had  children  ;  it  was  held,  that  the  Sessions,  in  a  ques- 
tion upon  their  settlement,  rightly  presumed  that  the  first  husband 
was  dead  at  the  time  of  the  second  marriage.^ 

§  36.  An  exception  to  this  rule,  respecting  the  presumption  of 
innocence,  is  admitted  in  the  case  of  a  libel.  For  where  a  libel  is 
sold  in  a  bookseller's  shop,  by  his  servant,  in  the  ordinary  course 
of  his  emploj'mcnt,  this  is  evidence  of  a  guilty  publication  by  the 
master  ;  thougli,  in  general,  an  authority  to  commit  a  breach  of 
the  law  is  not  to  bo  presumed.  This  exception  is  founded  upon 
public  policy,  lest  irresponsible  persons  should  be  put  forward,  and 
the  principal  and  real  offender  should  escape.  Whether  such  evi- 
'dence  is  conclusive  against  the  master,  or  not,  the  books  are  not 
perfectly  agi-eed  ;  but  it  seems  conceded,  that  the  want  of  privity 
in  fact  by  the  master  is  not  sufficient  to  excuse  him ;  and  that  the 
presumption  of  his  guilt  is  so  strong  as  to  fall  but  little  short  of 
conclusive  evidence.^  Proof  that  the  libel  was  sold  in  violation  of 
express  orders  from  the  master  would  clearly  take  the  case  out 
of  this  exception,  by  showing  that  it  was  not  sold  in  the  ordinary 
course  of  the  servant's  duty.  The  same  law  is  applied  to  the  pub- 
lishers of  newspapers.*  [  *  We  apprehend,  that,  at  the  present  day^ 
the  rule  is  pretty  generally  recognized,  that  the^cts  of  the  servant^ 
will  always  bind  the  master,  if  performed,  in  the  language  of  the. 
learned  author,  "in  the  ordinary  course  of  the  servant's  duty." 
And  that  this  rule  applies,  without  regard  to  the  motive  of  thp 
servant,  or  the  actual  privity  of  the  master ;  and  that  even  where 

1  "Williams  v.  E.  Ind.  Co.  3  East,  192 ;  Dienian's  Land,  bearins:  date  only  twenty- 
Bull.  N.  P.  298.  So,  of  allegations  that  a  five  days  prior  to  the  second  marriage,  it 
party  had  not  taken  the  sacrament;  Bex  was  held,  that  the  Sessions  did  right  in 
I'.  Hawkins,  10  East,  '211 :  had  not  com-  presuming  that  the  first  wife  was  living 
plied  with  the  act  of  uniformitv,  &c. ;  at  the  time  of  the  second  marriage.  Rex 
Powell  V.  JNlillburn,  3  Wills.  ;l.55,  3G6  :  that  v.  Ilarhorne,  2  Ad.  &  El.  540. 

goods  were  not  legally  imported  ;  Sissons  '^  Kex  v.  Gutch,  1  M.  &  M.  433 ;  Hard- 

V.  Dixon,  5  B.  &  C.75S:  t:»at  a  theatre  ing  v.  Greening,  8  Taunt.  42;  Kex  v.  Al- 

was  not  duly  licensed ;  Kodwell  v.  Kedge,  mon,  5  Burr.  2686  ;  Rex  v.  Walter,  3  Esp. 

1  C.  &  P.  220.  21 ;    1   Russ.  on  Crimes,  341   (3d  ed.  p. 

2  Rex  V.  Twyning,  2  B.  &  Aid.  385.  251) ;  Ph.  &  Am.  on  Evid.  466;  1  Phil. 
But  in  another  case,  where,  in  a  question  Evid.  446. 

upon  the  derivative  settlement  of  the  see-  ■*  1  Russ.  on  Crimes,  341 ;  Rex  v.  Nutt, 

end  wife,  it  was  proved  that  a  letter  had    Bull.  N.  P.  6  (3d  ed.  p.  251) ;  Southwick 
been  written  trom  the  first  wile  ti'om  Van     v.  Stevens,  10  Johns.  443. 

4* 


42  LAW    OF   EVIDENCE.  [PART   I. 

the  servant  acts  maMciously  and  in  express  disregard  of  ilic  i Ulster's 
instructions,  ii"  lie  act  within  tlie  scope  of  his  emplo} nu'iil,  iiml  in 
tiie  performance  of  Ms  master's  busin^ss^ 
superior,  api)lies.ij 

§  37.  Tlie  presumption  of  innocence  may  be  overthrown,  and  a 
presumption  of  guilt  be  raised  by  the  misconduct  of  the  party,  in 
suppressing  or  destroying  evidence  which  he  ouglit  to  produce,  or  to 
which  the  other  party  is  entitled.  Thus,  the  spoliation  of  papers, 
material  to  show  the  neutral  character  of  a  vessel,  furnishes  a 
strong  presumption,  in  odium  spoliatoris,  against  the  ship's  neu- 
trality.^ A  similar  presumption  is  raised  against  a  party  who  has 
obtained  possession  of  pa|)crs  from  a  witness,  after  the  service  of 
subpoena  duces  tecum  upon  the  latter  for  their  jtrodiiction,  which  is 
withheld.^  Tlit'  u'cncral  rule  is,  nnniia  pr(r><unn(iiliir  contra  sjjolia- 
toreni.^  His  conduct  is  atiril»ut(Ml  io  his  siijipuscil  kimwlodge  that 
the  truth  would  have  operated  against  him.  Thus,  if  some  of  a 
series  of  documents  of  title  are  suppressed  by  the  party  admitting' 
them  to  be  in  his  possession,  this  is  evidence  that  the  documents 
withheld  afford  inferences  unfavorable  to  the  title  of  that  party .^ 
Thus,  also,  where  the  finder  of  a  lost  jewel  would  not  produce  it, 
it  was  presumed  against  him  that  it  was  of  the  highest  value  of  its 
kind.^  But  if  the  defendant  has  been  guilty  of  no  fraud,  or 
improper  conduct,  and  the  only  evidence  against  him  is  of  the 
delivery  to  him  of  the  plaintiff's  goods,  of  unknown  quality, 
the  presumption  is,  that  they  were  goods  of  the  cheapest  quality.'^ 
The  fabrication  of  evidence,  however,  does  not  of  itself  furnish  any 

1  [  *  See  Rodfield  on  Railways,  §  137,  would    have   been   unfavorable.      Scovill 

and    the  nuinerous  cases  cited  and  com-  v.  Baldwin,  27  Conn,  olti.] 
mentedon.l  *  2  Poth.  Obi.  (by  Evans)  292;    Dal- 

-  The  Hunter,  1  Dods.  480;  The  Pi-  ston  r.  Coatswortb,  1  P.  Wins.  731 ;  Cow- 

zarro,  2  Wheat.  227  ;  1  Kent,  Comm.  157  ;  per  v.  Karl  Cowjier,  2  P.  Wni.s.  720,  748- 

supra,  §  81.  752;  Rex  v.  Arundel,  Hob.  lOi),  exi)lainecl 

•'  Leeds  v.  Cook,  4  Esp.  256 ;  Rector  v.  in  2  P.  Wnis.  748,  749  ;  D.  of  Newcastle 

Rector,  8  Gilm.    105.     P.ut  a  refu_sal    to  v.  Kinderly,  8  Ves.  368,  375 ;  Annesley  j-. 

produce  txiolcs  and  pn])ers  under  a  notice^  E.  of  Anjilesea.,  17  Howell's  St.  Tr.  1430. 

thougii  it   lays  a  i'oundaliini  \\>v  tlie  intro-  See  also  Sir  Samuel    Roniilly's  arf;innent 

duction    of   si'Cdudary  "e\  idincc  "(mnel?  in  Lord  Melville's  case,  29   Howell's  St. 

contents,  has  been  held  to  allord  ni)  cvi-  Tr.  1194,  1195;   Anon.  1  Ld.   Rayui.  731; 

deuce  of  the  fact  sotijiht  lo  l)e  proved  by '  Broom's  Le,t>al  Maxims,  p.  425.     In  Bar- 

thcm  ;  such,  for  example,  as  the  existence  ker  v.  Ray,  2  Rnss.  73,  the  Lord  Chancel- 

oFa  (Teed  of  conveyance  from  one  mercan-  lor  thought  that  this  rule  had  in   some 

tile  partner  to  another.     Hanson  v.  Eus-  cases  been  ])ressed  a  little  too   far.     See 

tace,  2   Howard,  S.  C.  Re]).  653.     [The  also   Harwood    v.    Goodright,    Cowp.   86. 

omission  of  a  jiarty  to  call  a  witness,  who  [See  />o.s7,  vol.  3,  §  34.] 
mifilit  ecpially   have  been   called   by  the  ^  James  v.  Bicm,  2  Sim.  &  Stu.  600. 

other  i>arty,  is  no  j^^round  for  a  presump-  ®  Armory  v.  Delamirie,  1  Stra.  505. 

tiou  that    the  testimony  of   the    witness  "^  Cluimes  v.  Pezzey,  1  Campb.  8. 


CHAP.  IV.]  PRESUMPTIVE   EVIDENCE.  43 

presumption  of  law  against  the  innocence  of  the  party,  but  is  a 
matter  to  be  dealt  with  by  the  jury.  Innocent  persons,  under  the 
influence  of  terror  from  the  danger  of  their  situation,  have  been 
sometimes  led  to  the  simulation  of  exculijatory  facts  ;  of  which  sev- 
eral instances  arc  stated  in  the  books. ^  J^either  has  the  mere 
non-production  of  boolis,  upon  notice,  any  other  legal  ef^oct,  than  to 
admit  the  other  party  to  prove  their  contents  by  parol,  unless 
under  special  circumstances.^  [*It  is  generally  considered  that 
when  a  party  withholds  a  document  in  his  possession  which  would 
show  the  precise  state  of  the  facts,  that  the  other  testimony  should 
be  taken  most  strongly  against  him.^] 

§  38.  Other  presumptions  of  this  class  are  founded  upon  the 
experience  of  human  conduct  in  the  course  of  trade;  men  being 
usually  vigilant  in  guarding  their  property,  and  prompt  in- assert- 
ing their  rights,  and  orderly  in  conducting  their  affairs,  and 
diligent  in  claiming  and  collecting  their  dues.  Thus,  where 
a  bill  of  exchange,  or  an  order  for  the  payment  of  money  or 
delivery  of  goods,  is  found  in  the  hands  of  the  drawee,  or  a  promis- 
sory note  is  in  the  possession  of  the  maker,  a  legal  presumption  is 
raised  that  he  has  paid  the  money  due  upon  it,  and  delivered  the 
goods  ordered*.^  A  bank-note  will  be  presumed  to  have  been 
signed  before  it  was  issued,  though  the  signature  be  torn  off.^  So, 
if  a  deed  is  found  i»i  the  hands  of  the  grantee,  having  on  its  face 
the  evidence  of  its  regular  execution,  it  will  be  presumed  to  have 
been  delivered  by  the  grantor.^  So  a  receipt  for  the  last  year's  or 
quarter's  rent  is  primd  facie  evidence  of  the  payment  of  all  the 

\ 

1  See  3  Inst.  104  ;  Wills  on  Circumst.  collocted.     See  also  The  State  v.  Vittum, 

Evid.  113.  9  N.  Ilamp.  519 ;   Kincaid    v.    IIowc,  10 

-  Cooper  I'.  Gibbons,  3  Canipb.  363.  Mass.  '205.     [The  possession  of  a  bond  by 

^  [* Attorney-General  v.   Windsor,   24  an  obligor  who  is  a  suiety  therein,  raises 

Beavan,  tiT',).]  a  letjal    presumjition   that   the  bond   has 

■*  Giljbon  V.  Featherstonhangh,  1  Stark,  been  paid.     Carroll  v.  Bowie,  7  Gill,  34.] 

R.  225;  Egg  v.  Barnett,  3  Esp.  196;  Gar-  [*And  the  party  benefited  by  a  deed  or 

lock  V.  Geortner,  7  Wend.  198 ;  Alvord  i'.  jndgnient  will  be  presumed  to  assent  to 

Baker,  9  Wend.  323;  Weidnor  w.  wSchwei-  the  same.    Clawson  v.  Eichbaum,2Grant's 

gart,  9  Serg.  &  II.  385 ;  Shepherd  v.  Cur-  Cases,  130.] 

rie,  1  Stark.  K.  454 ;  Brembridgc  v.  Gs-  '^  Murdock  v.  Union  Bank  of  Louis.  2 

borne.  Id.    374.      The  production,  by  the  Rob.  (Louis.)  R.  112;  Smith  v.  Smith,  15 

plaintiff,  of  an  I  O   U,  signed  by  the  de-  N.  R.  55. 

fendant,  is  prima  facie  evidence  that  it  was  ^  Ward  v.  Lewis,  4  Pick.  518.     [There  ] 

given  by  him  to  the  plaintiff.     Curtis  v.  is  a  legal  })resnmptioi\,  that  the  property 

Richards,    1    M.    &   G.   46.     And   where  in  the  goods  is  in  the  consignee  named  iuj' 

there  are  two  persons,  father  and  son,  of  tiie  bill  of  lading,  so  that  lie  may  sue  ir 

the  same  name,  it  is   presumed  that  the  his  own  name  to  recover  damages  for  non-j 

father  is  intended,  until  the  contrary  ap-  delivery  thereof,  &c.      Lawrence  v.  Min-^ 

pears.     See  Stebliing  v.  Spicer,  8  M.  G.  &  turn,  17  How.  U.  S.  100.] 
S.  827,  where  the  cases  to  this  point  are 


44  LAW   OP   EVIDENCE.  [PART   I. 

rent  previously  accrued. ^  But  the  mere  delivery  of  money  by  one 
to  another,  or  of  a  bank  check,  of  the  transfer  of  stock,  unex- 
plained, is  presumptive  evidence  of  the  payment  of  an  antecedent 
debt,  and  not  of  a  loan.^  The  same  presumption  arises  upon  the 
payment  of  an  order  or  draft  for  money,  namely,  that  it  was  drawn 
upon  funds  of  tlie  drawer  in  the  hands  of  the  drawee.  Ihit  in  the 
case  of  an  order  for  the  delivery  of  goods  it  is  otherwise,  they 
being  presumed  to  have  been  sold  by  the  drawee  to  the  drawer.^ 
Thus,  also,  where  the  proprietors  of  adjoining  parcels  of  land  agree 
upon  a  line  of  division,  it  is  presumed  to  be  a  recognition  of  the 
true  original  line  between  their  lots.* 

§  38a.  Of  a  similar  character  is  the  presumption  in  favor  of 
the  due  execution  of  solemn  instruments.  Thus,  if  the  sub- 
scribing witnesses  to  a  ^^^ll  are  dead,  or  if,  being  present,  they 
are  forgetful  of  all  the  facts,  or  of  any  fact  material  to  its  due 
execution,  the  laAv  will  in  such  cases  supply  the  defect  of  proof,  by 
presuming  that  the  requisites  of  the  statute  were  duly  observed.^ 
The  same  principle,  in  effect,  seems  to  have  been  applied  in  the 
case  of  deeds.^ 

§  39.  On  the  same  general  principle,  where  a  debt  due  by  specialty 
has  been  unclaimed,  and  without  recognition,  for  tiventy  y&o^^x^ 
the  absence  of  any  explanatory  evidence,  it  is  presumed  to  have 
been  paid.  The  jury  may  infer  the  fact  o|  payment  from  the 
circumstances  of  the  case,  within  that  period  ;  but  the  presumption 
of  law  does  not  attach,  till  the  twenty  years  are  expired.^     This 

1  1  Gilb.  Evid.  (by  Loffi)  309 ;  Brew-  «  Burling  v.  Paterson,  9  C.  &  P.  570 ; 

er  V.    Knapp,  1   Pick.     337.      [See   also  Dewey  v.  Dewey,  1  Met.  349 ;  Qiiimby  v. 

Hodgrlon  v.  VViglit,  36  Maine,  320.]  Buzzell,  4   Sliepl.  470 ;  New   Haven  Co. 

-  Welch  V.  Seaborn,  1  Stark.  R.  474 ;  Bank  v.  Mitchell,  16  Conn.  206 ;     infra, 

Patton  V.  Asii,  7  Serg.    &   K.  116,  125;  §372.n.    [*Bnt  there  is  no  presumption  in 

Breton  i\  Cope,  Peake's  Cas.  30 ;  Lloytl  v.  tlie  case  of  a  deed,  that  the  witnesses  be- 

Sandiland,  Gow,  R.  13,  10 ;  Gary  v.  Ger-  ing  dead,  would,  if  living,  testify  "to  the 

rish,  4  Esj).  9 ;  Aubert  v.  Wash,  4  Taunt,  grantor's  soundness  of  mind  at  the  time 

293;    Boswell  v.   Smith;  6  C.    &  P.    00;  of  delivery.     Flanders  r.  Davis,  19  N.  H. 

[*Ger(ling  v.  Walter,  29  Mo.  Rep.  420].  R.  139.     IJut  one  will  be  presumed  to  un- 

Where  tlio  plaiiititf,  in  proving  his  charge  derstand   the  contents    of  an  instrument 

of  money  lent,  i)roved  the  delivery  of  a  signed  by  him,  and  whether  dated  or  not. 

banlv-note  \.o  the  defendant,  tlie  aijiount  or  Androscoggin  Bank  v.  Kimball,  10  Cush. 

value  of  wliich  did  not  appear,  the  jury  373.]- 

were  rightly  directed  to  presume  that  it  "^  Oswald  ?j.  Leigh,  1  T.  R.  270;  Ililla- 

was  a  note  of  tlie  smallest  denomination  ry  v.  Wellar,  12  Ves.  264  ;  Colsell  r.  Budd, 

in  circulation ;  the  burden   of  proving  it  1  Campb.  27 ;  Boltz  v.  Raliman,  1  Yeates, 

greater  being  on  the  plaintifl".     Lawtoa  v.  584;  Cottle  v.  Payne,  3  Day,  289.    In  some 

Sweeny,  8  .lur.  964.  cases,  the  presumption   of  payment   has 

■^  Alvord  ?'.  Baker,  9  Wend.  323,  324.  been   made   by  the  court,  after  eighteen 

*  Sparhawk  v.  Bullard.  1  Met.  95.  years ;    Rex  i\    Stepliens,  1    Burr.    434 ; 

*  Burgoyne  ?•.  Showier,  1  Roberts,  Clark  ?\  Hopkins,  7  Johns.  556 ;  but  these 
Eccl.  R.  10;  In  re  Leach,  12  Jur.  381.  seem  to  be  exceptions  to  the  general  rule. 


CHAP.  IV.]  PRESUMPTIVE   EVIDENCE.  45 

rule,  with  its  limitation  of  twenty  years,  was  first  introduced  into 
the  courts  of  law  by  Sir  Matthew  Hale,  and  has  since  been  generally 
recognized,  both  in  the  courts  of  law  and  of  equity.^  It  is  applied 
not  only  to  bonds  for  the  payment  of  money,  but  to  mortgages, 
judgments,  warrants  to  confess  judgments,  decrees,  statutes,  recog- 
nizances, and  other  matters  of  record,  when  not  affected  by  stat- 
utes ;  but  with  respect  to  all  other  claims  not  under  seal  nor 
of  record,  and  not  otherwise  limited,  whether  for  the  payment 
of  money,  or  the  performance  of  specific  duties,  the  general  analo- 
gies arc  followed,  as  to  the  application  of  the  lapse  of  time,  which 
prevail  on  kindred  subjects.^  But  in  all  these  cases,  the  presump.- 
tion  of  payment  may  be  repelled  by  any  evidence  of  the  situatioa 
of  the  parties,  or  other  circumstance  tending  to  satisfy  the_jurst, 
that  the  debt  is  still  due.^ 

§  40.  Under  this  head  of  presumptions  from  the  course  of 
trade,  may  be  ranked  the  presumptions  frequently  made  from  the 
regular  course  of  business  in  a  public  office.  Thus  postmarks  on 
letters  are  prima  facie  evidence,  that  the  letters  were  in  the  post- 
office  at  the  time. and  place  therein  specified.*  If  a  letter  is  sent' 
by  the  post,  it  is  presumed,  from  the  known  course  in  that  de- 
partment of  the  public  service,  that  it  reached  its  destination  at 
the  regular  time,  and  was  received  by  the  person  to  whom  it  was 
addressed,  if  living  at  the  place,  and  usually  receiving  letters  there.^ 
[  *  And  the  same  presumption  has  been  applied  to   telegraphic 


1  Matliews  on  Presumpt.    Evid.  379 ;  tliis  subject  being  foreign  from  the  plan  of 

Haworth  ?'.  Bostock,  4  Y.  &  C.  1 ;  Gren-  this  work,  the   reader  is  referred  to   the 

fell  V.  Girdlestone,  2  Y.  &  C.  662.  treatise  of  Mr.  Mathews  on  Fresiunptive 

^  This   presumption   of^  the    common  Evidence,  ch.  19,  20 ;  and  to  Best  on  Pre- 
law is  now  rhade  absoTiite  m  tlie  case  of  sumptions,   Part  I.  ch.  2,  3.     [Grantham 
debts  due  by  specialty,  by  Stat.  3  &4  Wm.  v.  Canaan,  38  N.  H.  2G8.] 
IV.  c.  42,  §  3.    See  also  Stat.  3  &  4  Wm.  IV.  *  Eletcher  v.  Braddyl,  3  Stark.  E.  64 
c.  27,  and  7  Wm.  IV.  &  1  Vic.  c.  28.     It  is  Eex  v.  Johnson,  7  East,  65 ;  Rex  v.  Wat- 
also  adopted  in  xVciy  York,  by  Rev.  Stat,  son,  1  Campb.  215;  Rex  v.  Plumer,  Rus 
Part  III.  ch.  4,  tit.  2,  art.  5,  and  is  repella-  &   Ry.   264 ;    New    Haven   Co.   Bank  v. 
ble  only  by  written  acknowletTg'mentJ  macTe.  Mitchell,  15  Conn.  206. 
within  twentj'  years,  or  proof  of  part  pay-  ^  Saunderson  v.  Judge,  2  H.  Bl.  509 
ment  within  that  period.      In  ManjIanJ,  Bussard  v.  Levering,  6  Wheat.  102 ;  Lin- 
the  lapse  of  twelve  years  is  made  a  con-  denberger  v,  Beal,  lb.   104 ;    Bayley  on 
elusive   presimiption   of  payment,  in   all  Bills  (by  Phillips  &  Sewall),  275, 276,  277  ; 
cases  of  bonds,  judgments,  recognizances,  Walter  v.  Haynes,  Ry.  &  M.  149  ;  Warren 
and  other  specialties,  by  Stat.    1715,  ch.  i-.  AVarren,  1  Cr.  M.  &  R.  250.    [*Russell?-. 
23,  §  6  ;  1  Dorsey's  Laws  of  Maryl.  p.  11 ;  Beuckley.  4  R.  I.  Rep.  525.]    [See  post,  vol. 
Carroll  v.  AVaring,  3  Gill   &  Johns.  491.  2  (7th  ed.),  §  188,  and  note;  Loud  r.  Mer- 
A  like  provision  exists  in  Massachusetts,  as  rill,  45  Maine,  516  ;  contra,  see  Ereenian 
to  judgments  and  decrees,  after  tlje  lapse  v.  Morey,  lb.  50.]     [*It  would  seem  that 
of   twenty   years.      Rev.    Stat.   ch.    120,  the  date  a  letter  beai's  will  be  regarded, 
§  24.  prima  facie,  its  true  date  ;  hut  quere,  Butler 

*  A   more   extended  consideration  of  v.  Mountgarret,  7  Ho.  Lds.  Cas.  633.] 


46  LAW    OF    EVIDENCE.  [PAIIT   I. 

messages  shown  to  have  been  duly  forwarded.^]  Po,  where  a  letter 
was  put  into  a  box  in  an  attorney's  office,  and  the  course  of 
business  Avas,  that  a  bell-man  of  the  post-office  invariably  called 
to  take  the  letters  from  the  box ;  this  was  held  sufficient  to  pre- 
sume that  it  reached  its  destination.^  So,  the  time  of  clearance 
of  a  vessel,  sailing  mider  a  license,  was  presumed  to  have  been 
indorsed  upon  the  license,  which  was  lost,  upon  its  being  shown, 
that  without  such  indorsement,  the  custom-house  would  not  have 
permitted  the  goods  to  be  entered.^  So,  on  proof  that  goods 
which  cannot  be  exported  without  license  were  entered  at  the 
custom-house  for  exportation,  it  will  be  presumed,  that  there  was 
a  license  to  export  them.^  The  return  of  a  sheriff,  also,  which  is 
conclusively  presumed  to  be  true,  between  the  parties  to  the 
process,  is  taken  prima  facie  as  true,  even  in  his  own  favor;  and 
the  burden  of  proving  it  false,  in  an  action  against  him  for'  a  false 
return,  is  devolved  on  the  plaintiff,  notwithstanding  it  is  a  nega- 
tive allegation.^  In  fine,  it  is  presumed,  until  the  contrary  is_ 
proved,  that  every  man  obeys  the  mandates  of  the  law,  and  per- 
forms all  his  official  and  social  duties.^  The  like  presumption  is 
also  drawn  from  the  usual  course  of  men's  private  offices  and 
business,  where  the  primary  evidence  of  the  fact  is  wanting.'' 

§  41.  Other  presumptions  are  founded  on  the  experienced  con- 
tinuance or  permanency,  of  longer  and  shorter  duration,  in  human 
affairs.  When,  therefore,  the  existence  of  a  person,  a  personal 
relation,  or  a  state  of  things,  is  once  established  by  proof,  the  law 
presumes  tliat  the  person,  relation,  or  state  of  things  continues 
to  exist  as  before,  until  the  contrary  is  shown,  or  until  a  different 

1  [*  Commonwealth  u.  Jeffries,  7  Allen,  83  Miss.  117;   Cm-tis  v.  Ilerrick,  14  Cal. 

648.]  117;  Isbell  v.  N.  Y.  &  N.  Haven  K.  R. 

-  Skilbeck  v.  Garbett,  9  Jur.  339 ;  7  Ad.  Co.  25  Conn.  556.]    Hence,  children  born 

&  EI.  N.  s.  H46,  s.  c.  during  the  separation  of  husband  and  wife, 

*  Butler  i\  Allnut,  1  Stark.  K.  222.  by  a  decree  of  divorce  a  mensa  tt  tlmro,  are, 

*  Van  Oineron  v.  Dowick,  2  Campb.  prima  facie,  illeiiitimatc.  St.  George  r.  St. 
44.  Margaret,  1  Salk.  123  [  *  Drake  v.  Mooney, 

5  Clark  V.  Lyman,  10  Pick.  47;  Boyn-  31  Vt.  617;  Shelbyville  v.  Shelbyville,  1 

ton  ?'.  Willard,  id.  169.     [*  But  there  is  no  Met.    (Ky.)    54;    Cobb    v.   Newcomb,   7 

special  ground  for  presuTiiiug   the   regii-  Clarke  (Iowa),  43]. 

larity  of  the  proceedings  ot  an  adniinistra-  "'  Doe  v.  Turford,  3  B.  &  Ad.  890,  895 ; 

tion  in  the  sale  of  real  estate.    DooUttle  w.  Champnevs   v.   Peck,    1    Stark.    K.   404; 

Ilolton,  2f)  Vt.  K.  58S.]  Pritt  v.  Fairclough,  3  Campb.  305;  Dana 

*•  Ld.  Halifax's  case.  Bull.  N.  P  [298] ;  v.  Kemhle,  19  Pick.  112.    [*An  agreement 

Bank    United    States    r.    Dandridge,    12  requiring  a  stamp  being  lost,  and  not  hav- 

Wheat.  69,  70 ;  Williams  v.  E.  Ind."  Co.  3  ing  a  stamp  when  last  seen  by  the  witness, 

East,  192;    Ilartwell  v.   Root,   19  Johns,  will   be   presumed   never  to    liave    been 

345  ;  The  Mary  Stewart,  2  W.  Rob.  Adm.  stamped  ;  and  no  action  can  be  maintained 

R.  244  ;  [  *  Lea  c.  I'olk  County  Copper  Co.,  by  proof  of  its  contents.    Arbon  v.  Fussell, 

21  How.  U.  S.  493;  Cooper  v.  Granberry,  9  Jur.  n.  s.  753,-Exch.] 


CHAP.  IV.] 


PRESUMPTIVE   EVIDENCE. 


47 


presumption  is  raised,  from  the  nature  of  the  sulycct  in  question. 
Thus,  where  the  issue  is  ui)on  tlie  life  or  death  of  a  person,  once 
shown  to  liave  been  hving,  the  burden  of  proof  lies  upon  the  party 
W'ho  asserts  the  death. ^  But  after  the  lapse  of  seven  years,  with- 
oiit  intelligence  concerning  the  person,  the  presumption  of  life 
ceases,  and  the  burden  of  proof  is  devolved  on  the  other  party .^ 
This  period  was  inserted,  upon  great  deliberation,  in  the  statute 
of  bigamy,^  and  the  statute  concerning  leases  for  lives,*  and  has 
since  been  adopted,  from  analogy  in  other  cases.^    But  where  the 


presumption  of  life  conflicts  with  that  of  innocence^,  the  latter  is 
generally  allowed  to  prevail.^  Upon  an  issue  of  the  life  or  death 
"of  a  party,  as  we  have  seen  in  the  like  case  of  the  presumed  pay- 
ment of  a  debt,  the  jury  may  find  the  fact  of  death  from  the  lapse 


1  Throijmorton  v.  Walton,  2  Roll.  E. 
461 ;  Wilson  r.  Hodges,  2  East,  313  ;  Bat- 
tin  V.  Bio-clow,  1  Pet.  C.  C.  R.  452;  Gille- 
land  V.  Martin,  8  McLean,  490.  Vivere 
etiam  usque  ad  centum  annos  quilibet 
prcesumitiu-,  nisi  probetur  mortuus.  Cor- 
pus Juris  Glossatum,  torn.  2,  p.  718,  note 
(q) ;  Mascard.  De  Prob.  vol.  1,  Concl.  103, 
n.  5.  [*In  tracing  title  identity  of  name  is 
prima  facie  evidence  of  identity  of  person ; 
Gitt  (•.  Watson,  18  Mo.  Rep.  274.] 

-  Hopewell  r.  De  Pinna,  2  Campb.  113  ; 
Loring  v.  Steineman,  1  Met.  204  ;  Cofer  v. 
Thermond,  1  Kelly,  538.  This  presump- 
tion of  death,  from  seven  years'  absence, 
was  questioned  by  tlie  Vice-Chancellor  of 
England,  who  said  it  was  "  daily  becoming 
more  and  more  untenable  ;"  in  Watson  v. 
England,  14  Sim.  28 ;  and  again  in  Dow- 
ley  V.  Winfield,  Id.  277.  But  the  correct- 
ness of  his  remark  is  doubted  in  5  Law 
Mag.  X.  s.  338,  339 ;  and  the  rule  was 
subsequently  adhered  to  by  the  Lord 
Chancellor  in  Cuthbert  v.  Purrier,  2  Phill. 
199,  in  regard  to  the  capital  of  a  fund,  the 
income  of  which  was  l)cqueathed  to  an 
absent  legatee ;  thotigh  he  seems  to  have 
somewhat  rehixed  the  rule  in  regard  to 
the  accumulated  dividends.  See  7  Law 
Rep.  201.  The  presumption  in  such  cases 
is,  that  the  person  is  dead ;  but  not  that 
he  died  at  the  end  of  the  seven  years,  nor 
at  any  other  particular  time.  Doe  v.  Ne- 
pean,  5  B.  &  Ad.  86;  2  INI.  &  W.  894. 
The  time  of  the  death  is  to  be  inferred  by 
the  jury,  from  the  circmnstances.  Rust 
V.  Baker,  8  Sim.  443  ;  Smith  v.  Knowlton, 
II  N.  Hamp.  191;  Doe  v.  Flanagan,  1 
Kelly,  543 ;  Burr  v.  Sim,  4  Whart!  150 ; 
Bradley  i'.  Bradley,  Id.  173  [Whiteside's 
Appeal,  23  Penn.  St.  R.  114;  Spencer  v. 
Roper,  13  Ircd.  333  ;  Primm  i\  Stewart.  7 
Texas,   178.     See  also   Creed,  in  re,  19 


9 


Eng.  Law  &  Eq.  119  ;  Mcrritt  v.  Thomp- 
son, 1  Hilton,  550] .  [  *  Where  a  party  who 
takes  under  a  will  has  not  been  heard  of 
for  seven  years,  the  testator  having  died 
after  three  years  had  elapsed,  and  adver- 
tisement issued  on  the  death  of  the  testa- 
tor failing  to  produce  any  information, 
such  legatee  must  be  assumed  to  have 
survived  the  testator,  and  cannot  be  pre- 
sumed to  have  died  at  any  particular 
period  during  the  seven  years.  Dunn  v. 
Snowdon,  11  W.  R.  160.  "  A  young  sailor 
w;\s  last  seen  in  the  summer  of  1840, 
going  to  Portsmouth  to  embark.  His 
grandmother  died  in  March,  1841.  It  was 
presumed  that  he  was  the  survivor.  Tin- 
dall,  in  re,  30  Beav.  151.] 

3  1  Jac.  1,  c.  11. 

*  19  Car.  2,  c.  6. 

s  Doe  V.  Jesson,  6  East,  85;  Doe  v. 
Deakin,  4  B.  &  Aid.  433 ;  King  v.  Pad- 
dock, 18  Johns.  141.  It  is  not  necessary 
tliat  the  party  he  proved  to  be  absent  from 
the  United  States ;  it  is  sufficient,  if  it 
appears  that  he  has  been  absent  for  seven 
years,  from  the  particular  state  of  lis 
residence,  without  having  been  heard  from. 
Isewmaii  v.  Jenkins,  10  Pick.  515 ;  Innis 
r.  Cami)bcll,  1  Rawle,  373 ;  Spurr  v. 
Trimble,  1  A.  K.  3Iarsh.  278  ;  Wambough 
r.  Shenk,  1  Penningt.  167 ;  Woods  r. 
Woods,  2  Bay,  476 ;  1  N.  Y.  Rev.  Stat. 
749,  ij  6. 

B  Rex  V.  Twyning,  2  B.  &  Aid.  885; 
supra,  §  35.  But  there  is  no  absolute 
presumption  of  law  as  to  the  continuance 
of  life ;  nor  any  absolute  presumption 
against  a  person's  doing  an  act  because 
the  doing  of  it  would  be  an  offenc<^  against 
the  law.  In  every  case  the  circumstances 
must  be  considered.  Lapsley  i".  Grierson, 
1  H.  L.  Ca.  498. 


48  LAW   OF   EVIDENCE.  [PART   I, 

of  a  shorter  period  than  seven  years,  if  other  circumstances 
concur;  as,  if  the  party  sailed  on  a  voyage  which  should  long 
since  have  been  accomplished,  and  the  vessel  has  not  been  heard 
from.^  But  the  presumption  of  the  common  law,  independent  of 
the  finding  of  the  jury,  does  not  attach  to  the  mere  lapse  of  time, 
short  of  seven  years,^  unless  lettei:s  of  administration  have  been 
granted  on  his  estate  within  that  period,  which,  in  such  case,  are 
conclusive  proof  of  his  death.^  [*  The  inquiry  in  regard  to  pre- 
sumptions affecting  questions  depending  upon  the  continuance  of 
life  have  been  a  good  deal  considered  in  the  American,  as  well  as 
the  English  courts.  Thus  it  has  been  held  that  no  presumption  of 
death,  or  marriage,  or  the  birth  of  children,  or  the  reverse,  can  be 
made.  But  if  events  are  remote,  slight  proof  may  satisfy  a  jury. 
And,  ordinarily,  in  the  absence  of  evidence  to  the  contrary,  the 
continuance  of  life  will  be  presumed,  to  the  common  age  of  man.'* 
The  fact  that  one  sailed  in  a  ship  never  heard  from,  after  a  con- 
siderable period,  and  the  payment  of  the  amount  insured  upon  her 
as  of  a  total  loss,  is  good  ground  to  presume  his  death. ^J 

§  42.  On  the  same  ground,  a  partnership,  or  other  similar  rela- 
tion, once  shown  to  exist,  is  presumed  to  continue,  until  it  is 
proved  to  have  been  dissolved.*^  And  a  scisi7i,  once  proved  or 
admitted,  is  presumed  to  continue,  until  a  disseisin  is  proved.'^ 
The  opinions,  also,  of  individuals,  once  entertained  and  expressed, 
and  the  state  of  mind,  once  proved  to  exist,  are  presumed  to  re- 
main unchanged,  until  the  contrary  appears.  Thus,  all  the  mem- 
bers of  a  Christian  community  being  presumed  to  entertain  the 
common  faith,  no  man  is  supi)osed  to  disbelieve  the  existence  and 
moral  government  of  God,  until  it  is  shown  from  his  own  declara- 
tions.    In  like  manner,  every  man  is  presumed  to  be  of  sane 

1  In  the  case  of  a  missing  ship,  hound  Green  v.  Brown,  2  Stra.  1199;  Park  on 

from  Manilla  to  I^ondon,  on  which  the  un-  Ins.  433. 

derwritcr.^  hail  voluntarily  paid  the  amonnt         ^Newman  v.  Jenkins,   10  Pick.  515. 

insured,  the  death  of  those  on  board  was  Tlie  prochictlon  of  a  will,  with  proof  of 

presumed  by  the  Prerogative  Court,  after  payment  of  a  legacy  under  it,  and  of  an 

an  absence  of  only  two  years,  and  admin-  entry  in  the  register  of  burials,  were  held 

istratiou  was  granted  accordingly.     /"  re  sufficient  evidence  of  the  party's  death. 

Huttoii,  1  Curt.  595.     See  also  Sillick  v.  Doe  /•.  I'eufold,  8  C.  &  P.  53G. 
Booth,  1  y.  &  Col.  N.  C.  117.     If  tlie  per-         •■*  [*ytevens  v.  IVIcXamara,  36  Maine 

son  was  unmarried  when  he  went  abroad  Eep.  170. 

and  was  last  heard  of,  the  presum])tion  of  "  Main,  in  re,  1    Sw.  &   Tr.  11.     See 

his  death  carries  with  it  the  presumption  also  Norris,  in  re,  Id.  G.] 
that  he  died  without  issue.    Kowe  i\  Has-  "  Alderson  v.  Clay,  1  Stark.  R.  405;  2 

land,   1   W.  Bl.  404;    Doe  v.   Griffin,   15  Stark  Evid.  .590,  688  [*Eames  v.  Eames, 

East,  2'.t3.  41  N.  H.  177]. 

-  Watson  V.  King,  1  Stark.  R.  121 ;         "  Brown  v.  ICing,  5  Met.  173. 


CHAP.  IV.]  PRESUMPTIVE  EVIDENCE.  49 

mind,  until  the  contrary  is  shown ;  but  if  derangement  or  imlje- 
cility  be  proved  or  admitted  at  any  particular  period,  it  is  pre- 
sumed to  continue,  until  disproved,  unless  the  derangement  was 
accidental,  being  caused  by  the  violence  of  a  disease.^  [*  But  those 
presumptions  are  rather  matters  of  fact  than  of  law ;  or  at  most 
partly  of  law,  and  partly  fact.^] 

§  43.  A  spirit  of  comity,  and  a  disposition  to  friendly  intercourse, 
are  also  presumed  to  exist  among  nations,  as  well  as  among 
individuals.  And  in  the  absence  of  any  positive  rule,  aiSirming  or 
denying,  or  restraining  the  operation  of  foreign  laws,  courts  of 
justice  presume  the  adoption  of  them  by  their  own  government, 
unless  they  are  repugnant  to  its  policy,  or  prejudicial  to  its  interest.^ 
The  instances  here  given,  it  is  believed,  will  sufficiently  illustrate 
this  head  of  presumptive  evidence.  Numerous  other  examples  and 
cases  may  be  found  in  the  treatises  already  cited,  to  which  the 
reader  is  referred."* 

§  44.  PresUxMPtions  of  Fact,  usually  treated  as  composing  the 
second  general  lieact  of  presumptive  evidence,  can  hardly  be  said, 
with  propriety,  to  belong  to  this  branch  of  the  law.  JTliex^are ^  in 
truth,  but  mere  arguments,  of  which  the  major  premise  is  not 
a  rule  of  law ;  they  belong  equally  to  any  and  every  subject- 
matter  ;  and  are  to  be  judged  by  the  common  and  received  tests 
of  the  truth  of  propositions,  and  the  validity  of  arguments.  They 
depend  upon  their  own  natural  force  and  efficacy  in  generating 
belief  or  conviction  in  the  mind,  as  derived  from  those  connections, 
which  are  shown  by  experience,  irrespective  of  any  legal  relations. 
They  differ  from  presumptions  of  law  in  this  essential  respect, 
that  while  those  are  reduced  to  fixed  rules,  and  constitute  a  branch 
of  the  particular  system  of  jurisprudence  to  which  they  belong, 
these  merely  natural  presumptions  are  derived  wholly  and  directly 
from  the  circumstances  of  the  particular  case,  by  means  of  the 
common  experience  of  mankind,  without  the  aid  or  control  of  any 
rules  of  law  whatever.  Such,  for  example,  is  the  inference  of 
guilt,  drawn  from  the  discovery  of  a  broken  knife  in  the  pocket 

1  Attorney-General  v.  Parnther,  3  Bro.  vol.  2,  §    369-374,   tit.    "  Insanity,"   and 

Ch.  Ca.  443 ;  Peaslee  r.  Bobbins,  3  jMet.  §§  689,  G90.] 

164;    Hix   v.  Whittemore,    4    Met.   545         2  [*Sutton  v.  Sadler,  3  C.  B.  x.  s.  87.J 
[Perkins   i'.    Perkins,    39  N.   H.   163];  1  »  Bank  of  Ausnsta  r.  Earle,  13  Peters, 

CoUinson   on   Lunacy,  55;    Shelford   on  519;  Story  on  Confl.  ofLaws,  §§  3b,  37. 
Lunatics,  275 ;   1  Hal.  P.  C.  30 ;   Swinb.  ■*  See  Mathews  on  Presumptive  Evid. 

on  WiUs,  Part  II.  §  iii.  6,  7.     [See  post,  ch.  11  to  ch.  22;  Best  on  PresumpUons, 

passim. 


50  LAW   OF   EVIDENCE.  [PART   I. 

of  the  prisoner,  the  other  part  of  the  blade  bchig  found  sticking 
in  the  window  of  a  house,  which,  by  means  of  such  an  instrument, 
had  been  burglariously  entered.  These  presuniptions  remain 
the  same  in  their  nature  and  operation,  under  whatever  code  the 
legal  etfect  or  quality  of  the  facts,  when  found,  is  to  be  decided.^ 

§  45.  There  are,  however,  some  few  general  propositions  in 
regard  to  matters  of  fact,  and  the  weight  of  testimony  by  the  jury, 
which  are  universally  taken  for  granted  in  the  administration  of 
justice,  and  sanctioned  by  the  usage  of  the  bench,  and  which, 
therefore,  may  with  propriety  be  mentioned  under  this  head. 
Such,  for  instance,  is  the  caution,  generally  given  to  juries,  to 
place  little  reliance  on  the  testimony  of  an  accomplice,  unless  it 
is  confirmed,  in  some  material  point,  by  other  evidence.  There 
is  no  presumption  of  the  common  law  against  the  testimony  of  an 
accomplice;  yet  experience  has  shown,  that  persons  capable  of 
being  accomplices  in  crime  are  but  little  worthy  of  credit ;  and 
on  this  experience  the  usage  is  founded.^  A  similar  caution  is  to 
be  used  in  regard  to  mere  verbal  adynissions  of  a  party ;  this  kind 
of  evidence  being  subject  to  much  imperfection  and  mistake.^ 
Thus,  also,  though  lapse  of  time  does  not,  of  itself,  furnish  a  con- 
clusive legal  bar  to  the  title  of  the  sovereign,  agreeably  to  the 
maxim,  nullum  tempus  oceurrlt  regi ;  yet,  if  the  adverse  claim 
could  have  had  a  legal  commencement,  juries  are  instructed  or 
advised  to  presume  such  commencement,  after  many  years  of 
uninterrupted  adverse  possession  or  enjoyment.  Accordingly, 
royal  grants  have  been  thus  found  by  the  jury,  after  an  indefinitely 
long-continued  peaceable  enjoyment,  accompanied  by  the  usual 
acts  of  ownership.*  So,  after  less  than  forty  years'  possession  of 
a  tract  of  land,  and  proof  of  a  prior  order  of  council  for  the  survey 
of  the  lot,  and  of  an  actual  survey  thereof  accordingly,  it  was  held, 
that  the  jury  were  properly  instructed  to  presume  that  a  patent 
had  been  duly  issued.^     In  regard,  however,  to  crown  or  public 

1  See  2  Stark.  Evid.  684 ;  6  Law  Mag.  v.   Williams,   1   Ilagg.    Consist.   R.   304. 

370.     This  subject  lias  been  very  success-  See  infra,  under  the  head  of  Admissions, 

fully  illustrated  by  Mr.  Wills,  in  his  "  Ks-  §  200. 

say  on   the  Kationale   of  Circumstantial  *  Rex    v.   Brown,   cited    Cowp.    110; 

Evidence,"  jiiisshii.    \  The  facts,  from  which  Mayor  of  Kintistim  v.  Horner,  Cowp.  102 ; 

apre>miipiinii  ur  inreiviire  i>  Tn  l)e  (h-awn  Kldridgc  ;•.  Knott,  Cowp.  215;  JMather  v. 

must  he  [)n)veil   hy  iliiici   e\iiTeiuc.  aTid  Trinity  Church,  3  S.  &  K.  509;   Koe  v. 

nb'tlH-  jiresiiined  or  infeiicil.    DoiilI.i--  i\  Ireland,  11  East,  280;  Read  v.  Brookman, 

Mirclieli,  ;^"TemT."TTrr[ 3  T.  R.   159;    Goodtitle  v.  Baldwin,   11 

-  See  infra,  %%  380,  381.  East,  488 ;  2  Stark.  Evid.  672. 

8  Earle  t^.  Picken,  5  C.  &  P.  542,  note ;         ^  Jackson    v.  McCall,  10  Johns.  377. 

Rex  V.  Sinmions,  G  C.  &  P.  540;  Williams  "  Si  probet  possessionem  excedentem  me- 


CHAP.  IV.]  PRESUMPTITE   EVIDENCE.  51 

grants,  a  longer  lapse  of  time  has  generally  been  deemed  neces- 
sary, in  order  to  justify  this  presumption,  than  is  considered  suffi- 
cient to  authorize  the  like  presumption  in  the  case  of  grants  from 
private  persons. 

§  46.  Juries  are  also  often  instructed  or  advised,  in  more  or 
less  forcible  terms,  to  presume  conveyances  hettveen  private  indi- 
viduals, in  favor  of  the  party  who  has  proved  a  right  to  the 
beneficial  enjoyment  of  the  property,  and  whose  possession  is 
consistent  with  the  existence  of  such  conveyance,  as  is  to  be 
presumed ;  especially  if  the  possession,  without  such  conveyance, 
would  have  been  unlawful,  or  cannot  be  satisfactorily  explained.^ 
This  is  done  in  order  to  prevent  an  apparently  just  title  from 
being  defeated  by  matter  of  mere  form.  Thus,  Lord  Mansfield 
declared,  that  he  and  some  of  the  other  judges  had  resolved  never 
to  suffer  a  plaintiff  in  ejectment  to  be  nonsuited  by  a  term,  out- 
standing in  his  own  trustees,  nor  a  satisfied  term  to  be  set  up  by 
a  mortgagor  against  a  mortgagee  ;  but  that  they  would  direct  the 
jury  to  presume  it  surrendered.^  Lord  Kenyon  also  said,  that 
in  all  cases  where  trustees  ought  to  convey  to  the  beneficial  owner, 
he  would  leave  it  to  the  jury  to  presume,  where  such  presumption 
could  reasonably  be  made,  that  they  had  conveyed  accordingly.^ 
After  the  lapse  of  seventy  years,  the  jury  have  been  instructed  to 
presume  a  grant  of  a  share  in  a  proprietary  of  lands,  from  acts 
done  by  the  supposed  grantee  in  that  capacity,  as  one  of  the  pro- 
prietors.* The  same  presumption  has  been  advised  in  regard  to 
the  reconveyance  of  mortgages,  conveyances  from  old  to  new 
trustees,  mesne  assignments  of  leases,  and  any  other  species  of 

moriam  hominiim,   habet  vim    tituli   et  been  allowed."    And  he  cites  as  examples, 

privilegii,  etiam  a  Principe.     Et  hajc  est  Lade  v.  llalford,  Bull.  N.  P.  110;  England 

ditferentia  inter  possessionem  xxx.  vel.  xl.  v.  Slade,  4  T.  K.  G8:i ;  Doe  v.  Sybourn,  7 

annorum,  et   ncm    memorabilis  temporis ;  T.  K.  2;  Doe  c.  Hildei\  ii  B.  &  Aid.  782; 

quia  per  illam  acciuiritiir  non  directum,  Doe   v.  Wrigbte,  Id.  710.     See  Best  on 

sed  utite  dominium ;  per  istam  autem  di-  rresumptions,  pp.  144-109. 

rectum."     Mascard.     De  Probat.  vol.    1,  -  Lade  v.  Ilolford,  Bull.  N.  P.  110. 

p.  239,  Concl.  199,  n.  11,  12.  ^  Doe  v.  Sybourn,  7  T.  K.  2;  Doe  v. 

1  Tlie  rule  on  this  subject  was  stated  Staples,  2  T.  K.  696.     The  subject  of  the 

by  Tindal,  C.  J.,  in  Doe  v.  Cooke,  6  Bina;.  presumed  surrender  of  terms  is  treated  at 

174,  179.     "  No  case  can  be  put,"  says  he,  large  in  Matthews  on  Presumpt.  Evid.  cli. 

"ill   which-  anv   presumption    has    been  13,  p.  220-2-39,  and  is  ably  expounded  by 

made,  except  where  a  title  has  been  shown.  Sir  Edw.  Sugden,  in  his  Treatise  on  A  en- 

by  the  party  who  calls  for  the  presump-  dors  and  I'urchasers  ch.  xv.  sec.  3,voh3, 

tion,  .ffood  in  sulistance,  but  wanting  some  p.  24-07,  lOtii  ed.     See  also  Best  on  Pre- 

collatcral   matter,  necessary    to   make    it  sumptions,  §  113-122. 

_,coniplete  in  point  of  form.     In  such  case,  ■*  Earrar  i-.  JNIerrill,  1    Greenl.  17.     A 

"where  the  possession  is  shown  to  have  been  bv-law  may,  in  like  uuinner,  be  presumed, 

consistent  with  the  tact  directed  to  be  pre-  Bull.  N.  P.  _211.     The   case  of  Coi-pora- 

sumed,  and  in  such  cases  only,  has  it  ever  tions,  4  Co.  78 ;  Cowp.  110. 


52 


LAW   OF   EVIDENCE. 


[part  I. 


documentary  evidence,  and  acts  in  pais,  which  is  necessary  for 
the  support  ol"  a  title  in  all  other  respects  evidently  just.^  It  is 
sufficient  that  the  party,  who  asks  for  the  aid  of  this  presumption, 
has  proved  a  title  to  the  beneficial  ownership,  and  a  long  posses- 
sion not  inconsistent  therewith  ;  and  has  made  it  not  unreasonable 
to  believe  that  the  deed  of  conveyance,  or  other  act  essential  to 
the  title,  was  duly  executed.  Where  these  merits  are  wanting, 
the  jury  are  not  advised  to  make  the  presumption.^  [*  These  pro- 
sumptions  for  the  quieting  of  title  arc  not  necessarily  restricted 
to  what  may  fairly  be  su])posed  to  have  in  fact  occurred ;  but 
rather,  wdiat  may  have  occurred,  and  seems  requisite  to  quiet  the 
title  in  the  possessor.^] 

§  47.  The  same  prmciple  is  applied  to  matters  belonging  to  the 
personalty.  Thus,  where  one  town,  after  being  set  off  from 
another,  had  continued  for  fifty  years  to  contribute  annually  to 
the  expense  of  maintaining  a  bridge  in  the  parent  town,  this  was 
held  sufficient  to  justify  the  presumption  of  an  agreement  to  that 
effect.*  And,  in  general,  it  may  be  said  that  long  acquiescence  in 
any  adverse  claim  of  right  is  good  ground,  on  which  a  jury  may 


1  Emery  v.  Grocock,  6  Madd.  54; 
Cooke  r.  Soltan,  2  Sim.  &  Stii.  154 ;  Wil- 
son V.  Allen,  1  Jac.  &  W.  611,  620;  Koe 
V.  Keade,  8  T.  K.  118,  VI2;  White  v.  Fol- 
jambc,  11  Ves.  350;  Keene  v.  Deardon, 
8  East,  248,  2i;C) ;  Temiv  v.  Jones,  3  M.  & 
Scott,  472;  Kowe  v.  Lowe,  1  II.  Bl.  446, 
45'J;  V^an  Dyck  ?\  Van  Bnren,  1  Caincs, 
84 ;  Jackson  v.  Mnrray,  7  Johns.  5 ;  4 
Kent,  Comm.  90,  'J  I ;  Gray  v.  Gardiner,  3 
Mass.  399 ;  Knox  v.  Jenks,  7  Mass.  488 ; 
Society,  &c.  v.  Yonng,  2  New  Mamp.  K. 
310;  Colman  r.  Anderson,  10  Mass.  105; 
Tejepscot  Proprietors  v.  Kanson,  14  INlass. 
145  ;  Berf^en  r.  Bennet,  1  Caines,  I ;  Blos- 
som V.  Cannon,  14  Mass.  177 ;  Battles  v. 
Holley,  6  Greenl.  145 ;  Lady  Dartmonth 
V.  Koberts,  16  East,  334,  339 ;  Livinj;ston 
V.  Livingston,  4  Johns.  Ch.  287.  Wliether 
deeds  of  conveyance  can  be  presumed,  in 
cases  where  tlie  law  has  made  jirovision 
for  their  registration,  has  been  doul)te(l. 
The  point  was  argued,  but  not  decided,  in 
T)oe  V.  Hirst,  11  I'rice,  475.  And  sec  24 
Pick.  322.  The  better  opinion  seems  to 
be  that  though  the  court  will  not,  in  snch 
case,  presume  the  existence  of  a  deed  as  a 
mere  inference  of  law,  yet  the  tact  is  open 
lor  the  jury  to-  find,  as  in  other  cases. 
See  Kex  v.  Long  Biickby,  7  East,  45 ; 
Trials  per  Pais,  237;  Finch,  400;  Valen- 
tine I'.  Piper,  22  I'ick.  85,  93,  94. 


2  Doe  V.  Cooke,  6  Bing.  173,  per  Tin- 
dal,  C.  J.  ;  Doe  v.  Peed,  5  B.  &  A.  232 ; 
Livett  V.  Wilson,  3  Bing.  115;  Schauber 
V.  Jackson,  2  Wend.  14,  37 ;  Hepburn  v. 
Auld,  5  Cranch,  262 ;  Valentine  v.  Piper, 
22  Pick.  85.  This  rule  has  been  applied 
to  possessions  of  divers  lengths  of  dura- 
tion ;  as,  fifty-two  5-ears,  Kyder  r.  Hatha- 
way, 21  Pick.  298 ;  fif^y  years,  Melvin  (•- 
Prop'rs  of  Locks,  &c.  16  Pick.  137  ;  17 
Pick.  255,  s.  c. ;  thirtv-tliree  years,  White 
V.  Loring,  24  Pick.  319 ;  thirty  years,  Mc- 
Nair  v.  Hunt,  5  Miss.  300 ;  twenty-six 
years,  Newman  v.  Studley,  Id.  291 ;  twen- 
ty years,  Brattle-Square  Ciiurcli  v.  Bul- 
lard,  2  Met.  363  ;  but  the  latter  period  is 
held  sufficient.  The  rule,  however,  does 
not  seem  to  depend  so  much  \ii)on  the 
mere  lapse  of  a  definite  period  of  time  as 
upon  all  tiie  circumstances,  taken  togeth- 
er ;  the  question  being  exclusively  for  the 
jury.  [See  also  Attorney-General  r.  I'ro- 
prietors  of  Meetmg-house,  &c.  3  Gray,  1, 
62-65.1 

3  [  *  St.  Mary's  College  v.  Attorney- 
General,  3  Jur.  N.  s.  675.] 

*  Cambridge  v.  Lexington,  17  Pick. 
222.  See  al.so  Grote  v.  Grote,  10  Johns. 
402;  Schauber  v.  Jackson,  2  Wend.  36, 
37. 


CHAP.  IV.]  PEESUMPTIVE   EVIDENCE.  53 

presume  that  the  claim  had  a  legal  commencement ;  since  it  is 
contrary  to  general  experience  for  one  man  long  to  contiime  to 
pay  money  to  another,  or  to  perform  any  onerous  duty,  or  to  sub- 
mit to  any  inconvenient  claim,  unless  in  pursuance  of  some  con- 
tract, or  other  legal  obligation. 

§  48.  In  fine,  this  class  of  presumptions  embraces  all  the  con- 
nections and  relations  between  the  facts  proved  and  the  hypothesis 
stated  and  defended,  whether  they  are  mechanical  and  physical, 
or  of  a  purely  moral  nature.  It  is  that  which  prevails  in  the 
ordinary  affairs  of  life,  namely,  the  process  of  ascertaining  one 
fact  from  the  existence  of  another,  without  the  aid  of  any  rule  of 
law ;  and,  therefore,  it  falls  within  the  exclusive  province  of  the 
jury,  who  are  bound  to  find  according  to  the  truth,  even  in  cases 
where  the  parties  and  the  court  would  be  precluded  by  an  estop- 
pel, if  the  matter  were  so  pleaded.  They  are  usually  aided  in 
their  labors  by  the  advice  and  instructions  of  the  judge,  more  or 
less  strongly  urged,  at  his  discretion ;  but  the  whole  matter  is  free 
before  them,  unembarrassed  by  any  considerations  of  policy  or 
convenience,  and  unlimited  by  any  boundaries  but  those  of  truth, 
to  be  decided  by  themselves,  according  to  the  convictions  of  their 
own  understanding. 

6* 


PART    11. 


RULES  WPIICH   GOVERN 


PRODUCTIO:^^    OF    TESTIMONY. 


[65] 


PAKT  II. 

OF  THE  RULES  WHICH  GOVERN  THE  PRODUCTION  OF 
TESTIMONY. 


CHAPTER     I. 

OP  THE  RELEVANCY   OF   EVIDENCE. 

["*  §  49.  The  appropriate  province  of  the  court  and  Jury  in  the  trial  of  matters  of  fact. 
50.  Classification  of  the-  subject. 
61.  The  proof  must  be  confined  to  tlie  point  in  issue. 

51  a.  Evidence  receivable,  although  but  remotely  tending  to  prove  the  issue. 
52.  Proof  of  collateral  facts  not  admissible  even  to  discredit  witness. 

63.  A  wide  range  is  allowed  in  proof  of  knowledge  or  intent. 

53  a.  So  also  in  regard  to  acts  of  possession  affecting  title  to  land. 

64.  General  evidence  admissible  in  regard  to  character. 

65.  But  this  restricted  to  a  very  few  actions  where  good  character  is  in  issue.] 

§  49.  In  trials  of  fact,  witlioiit  the  aid  of  a  jury,  the  question  of 
the  admissibility  of  evidence,  strictly  ^jDcaking,  can  seTdom  be 
raised ;  since,  whatever  be  the  ground  of  objection,  the  evidence 
objected  to  must,  of  necessity,  be  read  or  heard  by  the  judge,  in 
order  to  determine  its  character  and  value.  In  such  cases,  the 
only  question,  in  effect,  is  upon  the  sufficiency  and  weight  of  the 
evidence.  But  in  trials  by  jury,  it  is  the  province  of  the  presiding 
judge  to  determine  all  questions  on  the  admissibility  of  evidence 
to  the  jury ;  as  well  as  to  instruct  them  in  the  rides  of  law,  by 
which  it  is  to  be  weighed.  Whether  tlicre  be  any  evidence  or  not 
is  a  question  for  the  judge;  wliether  it  is  sufiicient  eyide^ice  is^  a^ 
question  for  the  jury.^    If  the  decision  of  the  question  of  admissi- 


1  Per  Buller,  J.,  in  Carpenter  v.  Hay-  ceed,"  said  he,  "  to  the  merits  of  this  case, 

ward,  Doug.  374.     And  see  Best's  Priuci-  I  wish  to  say  a  few  words  ujion  a  point, 

pies  of  Evidence,  §  70-86.      [And  Cliand-  suggested  by  the  argument  of  the  learned 

ler  V.  Von    Koeder,  24    How.  U.  S.  224.]  counsel  for   the   ])risoiier,  ujjon    which  I 

The  notion  that  the  jury  liave  tiie  right,  have  had  a  decided   opinion   during   my 

in  any  case,  to  deterniine  questions  of  law,  whole  professional  life.     It  is,  that  in  crim- 

was  strongly  denied,  and  their    province  inal  cases,  and  especially  in  cajntal  oases, 

defined  by  Story,  J.,  in  the  United  States  the  jury  are  the  judges  of  the  law  as  well 

r.  Battiste,  2  Sumn.  243.     "Before  I  pro-  as  of  the  fact.     Mv  opinion  is,  that  the 

[57]- 


58 


LAW   OF   EVIDENCE. 


[part  II. 


bility  depends  on  the  decision  of  other  questions  of  fact,  such  as 
the  fact  of  interest,  for  example,  or  of  the  execution  of  a  deed, 


jury  are  no  more  judges  of  the  law  in  a 
capital  or  other  criminal  case,  upon  a  plea 
of  not  guilty,  than  they  are  in  every  civil 
case  tried  upon  the  general  issue.  In  each 
of  these  cases,  their  verdict,  when  general, 
is  necessarily  compounded  of  law  and 
of  fact,  and  includes  both.  In  each  they 
must  necessarily  determine  the  law,  as 
well  as  the  tiict.  In  eacli,  they  have  the 
physical  ])ower  to  disregard  the  law,  as 
laid  down  to  them  by  tlie  court.  But  I 
deny,  tlult,  in  any  case,  civil  or  criminal, 
they  have  the  moral  right  to  decide  the 
law  according  to  their  own  notions  or 
pleasure,  (^u  the  contrary,  I  hold  it  the 
most  sacred  constitutional  right  of  every 
party  accused  of  a  crime,  that  the  jury 
should  respond  as  to  the  facts,  and  the 
court  as  to  the  law.  It  is  the  duty  of  the 
court  to  instruct  the  jury  as  to  the  law ; 
and  it  is  the  duty  of  the  jury  to  follow 
the  law,  as  it  is  laid  down  l)y  the  court. 
This  is  the  right  of  every  citizen  ;  and  it  is 
his  only  protection.  If  the  jury  were  at  Ub- 
erty  to  settle  the  law  for  themselves,  the 
effect  would  be,  not  only  that  tlie  law  itself 
■would  be  most  uncertain,  from  the  different 
views  which  different  juries  might  take  of 
it ;  but,  in  case  of  error,  there  would  be  no 
remedy  or  redress  by  the  injured  party ; 
for  the  court  would  not  have  any  right  to 
review  the  law,  as  it  had  been  settled  by 
the  jury.  Indeed,  it  would  be  almost  im- 
practicable to  ascertain  what  the  law,  as 
settled  by  the  jury,  actually  was.  On  the 
contrary,  if  the  court  should  err,  in  la^^ing 
down  the  law  to  the  jury,  there  is  an  ade- 
quate remedy  for  the  injured  party,  by  a 
motion  for  a  new  trial,  or  a  writ  of  error, 
as  the  nature  of  tlie  jurisdiction  of  the 
particular  court  may  require.  Every  per- 
son accused  as  a  criminal  lias  a  right  to  ho 
tried  according  to  the  law  of  the  land,  the 
fixed  law  of  the  land,  and  not  by  the  law 
as  a  jury  may  understand  it,  or  choose, 
from  wantonness  or  ignorance,  or  acciden- 
tid  mistake,  to  interpret  it.  If  I  thought 
that  the  jury  were  the  proper  judges  of 
the  law  in  criminal  cases,  I  should  hold  it 
my  duty  to  abstain  from  the  responsibility 
of  stating  the  law  to  them  upon  any  such 
trial.  But  believing  as  I  do,  that  every 
citizen  has  a  right  to  be  tried  by  tiie  law, 
and  according  to  the  law;  that  it  is  his 
privilege  and  truest  shield  against  oppres- 
sion and  wrong  ;  I  feel  it  my  duty  to  state 
my  views  fully  and  ojienly  on  the  present 
occasion."  The  same  opinion  as  to  the 
province  of  the  jury,  was  strongly  ex- 
pressed by  Lord  C.  J.  Best,  in  Levi  v. 
Mylne,  4  Bing.  195. 


The  same  subject  was  more  fully  con- 
sidered in  The  Commonwealth  v.  Porter, 
10  Met.  2(i3,  which  was  an  indictment  for 
selling  intoxicating  liquors  without  license. 
At  the  trial  the  delendant's  counsel,  being 
about  to  argue  the  questions  of  law  to  the 
jury,  was  stopjied  by  the  judge,  who 
ruled,  and  so  instructed  the  jury,  that  it 
was  their  duty  to  receive  the  law  from  the 
court,  and  implicitly  to  follow  its  direction 
upon  matters  of  law.  Exceptions  being 
taken  to  this  ruling  of  the  juiige,  the  point 
was  elaborately  argued  in  bank,  and  fully 
considered  by  the  com-t,  whose  judgment, 
delivered  by  Shaw,  C.  J.,  concluded  as  fol- 
lows :  "  Un  the  wliole  subject,  the  views 
of  the  court  may  be  summarily  expressed 
in  the  following  propositions  :  That,  in  all 
criminal  cases,  it  is  competent  for  the  jury, 
if  they  see  fit,  to  decide  upon  all  questions 
of  fact  embraced  in  the  issue,  and  to  refer 
the  law  arising  thereon  to  the  court,  in  the 
form  of  a  special  verdict.  But  it  is  op- 
tional with  the  jury  thus  to  return  a  spe- 
cial verdict  or  not,  and  it  is  within  their 
legitimate  province  and  power  to  return  a 
general  verdict,  if.  they  see  fit.  In  thus 
rendering  a  general  verdict,  the  jury  must 
necessarily  jmss  upon  the  whole  issue, 
compomided  of  the  law  and  of  the  fact, 
and  they  may  thus  incidentally  pass  on 
questions  of  law.  In  forming  and  return- 
ing such  general  verdict,  it  is  within  the 
legitimate  authority  and  power  of  the  jury 
to  decide  definitively  upon  all  questions 
of  fact  involved  in  the  issue,  according  to 
their  judgment,  upon  the  force  and  effijct 
of  the  competent  evidence  laid  before 
them ;  and  if  in  the  progress  of  the  trial, 
or  in  the  summing-up  and  charge  to  the 
jury,  the  court  should  express  or  intimate 
any  opinion  upon  any  such  question  of 
tact,  it  is  within  the  legitimate  province 
of  the  jury  to  revise,  reconsider,  and  de- 
cide contrary  to  such  opinion,  if,  in  their 
judgment,  it  is  not  correct,  and  warrant- 
ed by  the  evidence.  But  it  is  the  duty  of 
the  court  to  instruct  the  jury  on  all  ques- 
tions of  law  which  appear  to  arise  in  the 
cause,  and  also  upon  all  questions  ]iertinent 
to  the  issue,  upon  which  either  party  may 
request  the  direction  of  the  court  upon 
matters  of  law.  And  it  is  the  duty  of  the 
jury  to  receive  the  law  from  the  court, 
and  conform  their  judgment  and  decision 
to  such  instructions,  as  far  as  they  under- 
stand them,  in  a])i)lying  the  law  to  the 
facts  to  be  found  by  them  ;  and  it  is  not 
within  the  legitimate  province  of  the  jury 
to  revise,  reconsider,  or  decide  contrary  to 
such  opinion  or  direction  of  the  court  in 


riTAr.Lj 


THE  RELEVANCY   OF   EVIDENCE. 


tlicRo  preliminary  questions  of  fact  are,  in  llic  first  instance,  to  l)e 
tried  by  the  judge ;   though  he  may,  at  his  discretion,  take  the 


matter  of  law.  To  tliis  duty  jurors  are 
bn'Uid  'ly  11  strong  social  and  moral  obli^a- 
tii.n,  en  brcetl  by  the  sanction  of  an  oalli,  to 
On;  bav  e  extent  and  in  the  t^aine  manner 
.-  tin;  are  conscientiously  hound  to  de- 
cide ai  questions  of  tiict  according  to  the 
(  ni'-:,  e.  It  is  no  valid  ohjection  to  this 
\  u  vv  the  duties  of  jurors,  that  they  are 
not  ai  -nable  to  any  leg;d  i)rosecution  for 
a  wroi  ;  decision  in  any  matter  of  law ; 
i'  111  IV  arise  from  an  lionest  misUike  of 
j  I'l  !  ;nt,  in  their  aiiiireiiension  of  the 
r  ill .-  id  principles  of  law,  as  laid  down 
1  \  I.  •  court,  especially  in  perplexed  and 
coiir  '  ;ate(i  cases,  or  ti-om  a  mistake  of 
jiuh'  ;nt  in  applying  them  honestly  to 
tlif  K  ts  proved.  The  same  reason  ap- 
]i!'  the  decisions  of  juries  upon  ques- 

I  of  fact   clearly  within  their   legiti- 

i:        jiowers;  they  are  not  punishable  for 
('.  .  ulii:g  wrong.     The  law  vests  in  them 
I'      power  to  judge,  and  it  will  presume 
ley  judge  honesth^,  even    though 
nay  be  reason   to   apprehend   that 
judge     erroneously ;    they   cannot, 
re,  be  held  responsilile  for  any  such 
n,   unless    upon     evidence    which 
establishes  proof  of  corruption,  or 
.'ilful  violation  of  duty.     It  is  within 
itimate  power,  and  is  the  duty  of 
u-t,  to  superintend  the  course  of  the 
to  decide  upon  the  admission  and 
)n  of  evidence  ;  to  decide  upon  the 
any    books,    papers,   documents, 
or   works    of  supposed  authority, 
may  be  offered  upon  either  side  ;  to 
upon  all  collateral  and  incidental 
dings  ;  and  to   confine  parties  and 
•I  to  the  matters  within  the  issue. 
"  jury  have  a  legitimate   power  to 
I'      a  general  verdict,  and  in  that  case 
ass  upon  the  whole  issue,  this  court 
opinion    that   the    defendant    has 
.,  by  himself  or  his  counsel,  to  ad- 
'■        the  jury,  under  the  general  sujierin- 
tendence  of  the  court,  uj)on  all  the  mate- 
rial ipi  'stions  involved  in  the  issue,  and 
to  this  extent,  and  in  this  connection,  to 
address  the  jury  upon  such  questions  of 
law  as  come  within  the  issue  to  be  tried. 
Such  adih'ess  to  the  jury,  upon  questions 
of  law  embraced  in  the  issue,  by  the  de- 
fendant or  his  counsel,  is  warranted  by  the 
long  practice  of  the  coiu-ts  in  this  Com- 
monwealth in  criminal  cases,  in  which  it 
is    witliin  the  established  authority  of  a 
jury,  if  they  see  fit,  to  return  a  general 
verdict,    embracing   the    entire    issue   of 
law  and   fact."     10   Mfet.    285-287.     See 
also  the  opinion  of  Lord  Mansfield  to  the 
same  efiect,  in  Rex  v.  The   Dean  of  St. 


Asaph,  21  How.  St.  Tr.  10.']0,  1040;  and 
of  Mr  Ilargrave,  in  his  note,  27i").  to  Co. 
Lit.  155,  where  the  earlier  authorities  jue 
cited.     The  whole  subject,  with  particu- 
lar  reference   to   criminal   cases,  was  re- 
viewed with  great  learning  and  ability  iiy 
Gilchrist,  J.,  and  again  by  Parker,  C.  J., 
in  Pierce's  case,  1:5  N.  Hamp.  536,  where 
the  right  of  the  jury  to  judge  of  the  law 
was  denied.     And  see,  accordingly,  The 
People  V.  Price.  2  Barb.  S.  C.    K.  5C.(> ; 
Townsend   v.   The  State,  2  Blackf.  152 ; 
Davenport    v.     The    Commonwealth,     1 
Leigh,  R.  588 ;  Commonwealth  v.  Garth, 
3  Leigh,  R.  7G1 ;  Montee  r.  The  Connnon- 
wealth,  3  J.  J.  IMarsh.  150  ;  Pennsvlvania 
f.  Bell,  Addis.    ]{.     1(10,  IGl  ;    Common- 
wealth c.  Abbott,  13  Jlet.  123, 124  ;  Hardy 
V.  The  State,  7   Misso.  R.  607;  Snow's 
case,  6  Shepl.  346,  stwb.  contra.     [In  SUite 
V.  Croteau,  23  Vt.  (8  Washb.)  14,  the  Su- 
preme   Court  of  Vermont,    Bennett,   J., 
dissenting,  decided  that  in  criminal  cases 
the  jury  has  the    right  to  determine    the 
whole  matter  in  issue,  the  law  as  well  as 
the  tact ;  and  the  same  rule  is  established 
in  several  other  states.     The  legislature  of 
Massachusetts,  in    1855    (Acts,  1855,  ch. 
152),  enacted,  "  that  in  iUl  ti-ials  for  crimi- 
nal  oflences,  it   shall  be  the   duty  of  the 
jm-y  to  try,  according  to  estabhshed  forms 
and   principles   of  law,  all  causes  which 
shall  be  committed  to  them,  and  after  hav- 
ing received  the  instructions  of  the  court, 
to  decide  at  their  discretion,  by  a  general 
verdict,  both  the  fact  and  law  involved  in 
the  issue,  or  to  find  a  special  verdict   at 
their  election  ;  but  it  shall  be  the  duty  of 
the  court  to  superintend  the  course  of  tiie 
trials,  to  decide  upon  the  admission  and 
rejection  of  evidence,  and  npon  all  ques- 
tions of  law  raised  dm-ing  the  trials,  and 
upon  all  collateral  and  incidental  proceed- 
ings, and  also  to  charge  the  jury  and  to 
allow  bills  of  exception,  and  the  court  may 
grant  a  new  trial  in  cases  of  conviction." 
This  act  has  been  before  the  Supreme  Ju- 
dicial Court  for  exposition  and  constnic- 
tion  upon  excejitions  taken  to  the  ruling 
of  the  court  below  in  tiie  trial  of  an  in- 
dictment against  a  defendant  for  being  a 
C(mmion  seller  of  intoxicating  liquors,  juid 
the  court  has   decided,  as   apjiears   by  a 
note  of  their  decision  in  the  Monthly  Law 
Reporter  for  Sejnember,  \bbl  ((.onnnon- 
wealth  v.  Anthes,  20  Law  Reporter,  2U8), 
as  follows  :   "  I'pon  the  question  whether 
this  statute  purports  to  change  the  law  as 
alreadv  existing  and  recognized  in  Com- 
monwealth   V.    Porter.  10   Met.    203,  the 
coiu-t   were   equally    divided.     But   by  a 


GO 


LAW   OF   EVIDENCE. 


opinion  of  tlie  jury  upon  them.     But  where  the  question  i  .  mixed, 
consisting  of  law  and  fact,  so  intimately  blended  as  uot  to  )e  easily 


1 


majority  of  the  court  it  was  held,  that  if 
such  c!iaiii;o  of  the  hiw  is  conteiiiplateil 
by  the  statute,  tlie  same  is  void."  S.  C.  5 
Gray,  1^5.  [  *  The  question  of  the  right 
of  the  jury  to  jud^e  of  the  hiw  in  criminal 
cases  has  been  a  good  deal  discussed,  both 
in  England  and  America,  and  very  dillerent 
'  conclusions  reached  by  judges  of  nearly 
equal  eminence.  The  opinion  of  Hall,  J., 
in  State  v.  Croteau,  supra,  u\ay  be  consulted 
as  a  very  fair  and  able  exposition  of  the  ar- 
gument and  authoritj'  in  tavor  of  the  oppo- 
site view  from  that  maintained  in  the  pre- 
ceding portion  of  this  note.  For  ourselves, 
we  have  always  boon  content  not  to  raise 
any  such  issue  with  tlie  jury  in  criminal 
cases,  lest  they  might  be  tliereby  provoked 
to  abuse  tlieir  just  discretion  in  the  appli- 
cation of  the  law  to  the  facts.  Our  own 
views  are  brieflv  presented  in  State  v. 
McDonnell.  32  Vt.  Rep.  531-533.] 

The  application  of  this  doctrine  to  par- 
ticular cases,  though  generally  uniform,  is 
)iot  perfectly  so  where  the  question  is  a 
mixed  one  of  law  and  fact.  Thus  the 
question  o^  probable  cause  belongs  "to  the 
court;  but  where  itis  a  niixed  questiorrciT 
law  and  fact  intimately  blended,  as,  for 
ex^ple,  where  the  party's  belli'/  is  a  raa- 
tqj^l  element  in  the  question,  it  has  been 
held  right  to  leave  it  to  the  jury,  with' 
proper  instructions  as  to  the  law.  Mc- 
Donald V.  Rooke,  2  Bing.  N.  C.217;  Had- 
drick  V.  Raine,  12  Ad.  &  El.  267,  n.  s. 
And  see  Taylor  t-.  Willans,  2  13.  &  Ad. 
845;  6  Bing.  183;  post,  vol.  2,  §  454. 
The  judge  has  a  right  to  act  upon  all  the 
uncontradicted  facts  of  the  case ;  but 
wiiere  the  credibility  of  witnesses  is  in 
([uestion,  or  some  material  fact  is  in  doubt, 
or  some  inference  is  attem])ted  to  be  drawn 
from  some  fact  not  distinctly  sworn  to, 
the  judge  ougiit  to  submit  the  question  to 
the  jurv.  I\iitehel  ?'.  Williams,  11  M.  & 
W.  2l()',  217,  per  Alderson,  B. 

In  trosp.-i--;  ill  l"iiils  iisjinrfiitis,  tlio  l'"i"t 
Jides  of  tlio  iloffmlant  in  takin.u  tho  guniL, 
and  the  reas()iiai)loness  of  his  hoiief  that 
lie  was  executing  his  duty,  and  of  his  sus- 
picion of  the  plaintiff,  are  questions  for 
the  jury^.  Wedge  v.  Berkeley,  6  Ad.  &  El. 
6(53  ;  llazeldine  v.  Grove,  3  Ad.  &  El.  997, 
N.  s.,  Hughes  V.  Buckland,  15  M.  &  W. 
346.  In  a  question  of  jiediijree,  it  is  for  the 
judge  to  decide  whether  the  person 
whose  declarations  are  ottered  in  evidence 
was  a  member  of  the  ijimily,  or  so  related 
as  to  be  entitled  to  be  heard  on  such  a 
question.  Doe  v.  Davies,  11  Jur.  607  ;  10 
Ad.  &  El.  314,  N.  8. 


licn- 


The  question,  what  are  J/suaZ  yn-'-i 
a  deed,  is  a  question  lor  tlie  jur/.  an 
matter  of  construction  for  the  C(  urt. 
nett  V.  Womack,  3  C.  &  P.  96. 

In  regard  to  reasonableness  of  time,  care, 
skill,  and  the  like,  there  seems  to  have 
been  some  diversity  in  the  api'lication  of 
the  principle;  but  it  is  comeded  that, 
"  whether  there  has  been,  in  aiy  jiarlicu- 
lar  case,  reasonable  dihgence  u;~ed,  or 
whether  unreasonable  delay  hai  occnnod, 
is  a  mixed  question  of  law  and  fact,  ■■•  to 
decided  by  the  jury,  acting  um  or 
rection  of  the  judge,  upon  the  \y.. 
circumstances  of  each  case."  .Vloni  '■  i 
Rawdon,  9  Bing.  416,  per  Tin  all,  C.  J.; 
Nelson  V.  Patrick,  2  Car.  &  t .  641,  i>er 
Wilde,  C.  J.  The  judge  is  to  aform  the 
jury  as  to  the  degree  of  diligenc. .  orcareor 
skill  which  the  law  demands  of  the  I'arty, 
and  what  duty  it  devolves  on  lii  n.  and  the 
jury  are  to  find  whether  that  dut  *■  iias  boon 
done.  Hunter  v.  Caldwell,  llJi  r.  770 ;  10 
Ad.  &  Kl.  69,  N.  s. ;  Burton  v.  G  riffiths,  11 
M.  &  W.  817  ;  Facey  v.  llurdo  n,  8  B.  & 
C.  213 ;  Stewart  v.  Cauty,  8  M.  i.  W.  160; 
Parker  v.  Palmer,  4  B.  &  Aid.  387 ;  Pitt 
V.  Shew,  Id.  206 ;  Mount  v.  ]  .arkins,  8 
Bing.  108;  PhilUps  v.  Irving,  7  -M.  &4Gr. 
325;  Reece  v.  Rigby,  4  B.  &  A!  '  wj. 
But  where  the  duty  in  regard  '"  iun- is 
established  by  uniform  usage 
rule  is  well  known ;  as  in  th 
notice  of  the  dishonor  of  a  hi' 
where  the  jjarties  live  in  the  sr 
or  of  the  duty  of  sending  si 
by  the  next  post,  packet,  or  < 
or  of  the  reasonable  hours  < 
hours  of  the  day,  within  which 
be  presented,  or  goods  to  be  di 
the  like ;  in  such  cases,  the  t 
fact  being  proved,  its  reasonabli  icssis  set- 
tled by  the  rule,  and  is  decla  ed  by  the 
judge.  See  Story  on  Bills,  §  2:jr-2'H, 
338,  349 ;  post,  vol.  2,  §§  178,  179,  186- 
1M8  [Watson  v.  Tarplev,  18  Iiow.  U.  S. 
517].         . 

Whether  by  the  word  "  month,"  in  a 
contract,  is  meant  a  calendar  or  a  lunar 
month,  is  a  question  of  law  ;  but  whether 
parties,  in  the  particular  case,  intended  to 
use  it  in  tiie  one  sense  or  the  other,  is  a 
question  for  the  jury,  upon  the  evidence 
of  circumstances  in  the  case.  Simpson  v. 
Margitson,  12  Jur.  155;  Lang  v.  Gale,  1 
M.  &  S.  Ill  ;  Hutchinson  v.  Bowker,  5 
M.  &  W.  535 ;  Smith  v.  Wilson,  3  B.  & 
Ad.  728;  Jolly  v.  Young,  1  Esp.  186; 
Walker  v.  Hunter,  2  M.  Gr.  &  Sc.  324. 


and    the 
case    of 


'  ijI  16. iO 

veied,  or 

le  of  the 


CHAP.  I.]  THE   RELEVANCY    OF    EVIDENCE.  C,^ 

susccptiljle  of  separate  decision,  it  is  siiUniitlod  to  the  jury,  wlio 
are  first  instructed  Ijy  the  judge  in  the  i»rinciiilcs  and  rules  ot"  h\\\\ 
by  which  they  arc  to  be  governed  in  finding  a  verdict;  and  thes- 
instructions  they  are  bound  to  follow. ^  If  the  genuineness  of  a 
deed  is  tiie  fact  in  question,  the  preliminary  proof  of  its  execution, 
given  before  the  judge,  does  not  relieve  the  party  offering  it  from 
the  necessity  of  proving  it  to  the  jury.^  The  judge  only  decides 
whether  there  is,  primd  facie,  any  reason  for  sending  it  at  all  to 
the  jury.^ 

§  50,  The  production  of  evidence  to  the  jury  is  governed  by  CCT^ 
tain  principles,  which  may  be  treated  under  four  general  heads 
or  rules.  The  first  of  these  is,  that  the  evidence  must  correspond 
with  the  allegations,  and  be  confined  to  the  point  in  issue.  The 
second  is,  that  it  is  suflficient,  if  the  substance  only  of  the  issue  be 
proved.  The  tliird  is,  that  the  burden  of  proving  a  proposition,  or 
issue,  lies  on  the  party  holding  the  affirmative.  And  i\\Q  fourth  is, 
that  the  best  evidence  of  which  the  case,  in  its  nature,  is  suscc})- 
tible,  must  always  be  produced.  These  we  shall  now  consider  in 
their  order. 

§  51.  First.  The  pleadings  at  common  law  are  composed  of  the 
written  allegations  of  the  parties,  terminating  in  a  single  proposi- 
tion, distinctly  affirmed  on  one  side,  and  denied  on  the  other,  call^ 
the  issue.  If  it  is  a  proposition  of  fact  it  is  to  be  tried  by  the  jury, 
upon  the,  evidence  adduced.     And  it  is  an  established  rule,  which 

1  1  Stark.  Evirl.  510,  519-520  ;  Hutch-  1845,  p.  27-44.     [It  is  tlie  province  of  tlic 

inson  v.  Bowkor,  5  IM.  &  W.  5:15 ;  Wil-  jmltre  who  presides  at  the  trial  to  decide 

lianis  V.  Bvnie,  2  N.  &  P.  IS'J  ;  I^IcDonald  all  questions  on   the  adnlis^ibility  of  evi- 

r.  Kooke,'2  Einfr.  N.  C.  217;  James  v.  dence.     It  is  also  his  province  to  decide 

Phelps,  11  Ad.  &  El.  483;  3  P.  &  Y).  231,  anv  preliminary  questions  of  lact,  howev- 

8.  c. ;  Panton  i-.  Williams,  2  Ad.  El.  IGU,  er  intricate,  the  solution  of  which  may  be 

N.  8. ;  Townsend  v.  Tlie  State,  2  Blackf.  necessary  to  enable  liim  to  determine  tlie 

151;  Montjiomerv  !-.  Oliio,  11    Ohio    R.  other  question  of  admissibility.     And  his 

'  424.     Questions  of  interpretation,  as  well  decision  is  conclusive,  unless  he  saves  the 

as  of  consh-uction  of  written  instruments,  question  for  revision  by  the  full  court,  on 

are  for  the  court  alone.     Jnfru,  §  277,  note  a  report  of  the  evidence,  or  counsel  bring 

(1).   But  w  nere  a  doubt  as  to  tlie  applica-  up  the  question   on  a   bill  of  exceptions 

tion  of  the  descriptive  portion  of  a  deed  to  which  contains  a  statement  of  the  ^evi- 

external  objects  arises  from  a  latent  ambi-  dence.     (Jorton  v.  IlacUell.  9  Ciish.  511; 

guitv,and  is  therefore  to  be  solved  by  parol  Bartlett  v.  Smitli,  11  IMees.  &  Wels.  4S5. 

evidence,  the  question  of  intention  is  ne-  Thus  the  question  wliether  the  application 

cessarilv  to  be   determined  by  the  jury,  to  a  justice  of  the  peace,  under  a  statute. 

Eeed  i'.' Proprietors  of  Locks,  &c.,  8  How.  to  call  a  meetini;  of  tlie  iiroprietors  ot  a 

S.  C.  R.  274  [Savignac  v.  Garrison,  18  lb.  meelinji-house,  was  sifincd  by  live  at  least 

13(5 1  of  such  proprietors,  as  preliminary  to  tlie 

-  Ross  V.  Gould,  5  Greenl.  204.  question  of   tlie   admissibility  of  tlie  rcc- 

8  The  subject  of  the   functions  of  the  ords  of  such  meetinsr,  is  for  the  jud;je.  and 

judsc  as  distinjiuislied  from  those  of  the  not  for  the  jury.     Gorton  v.  Hadsell,  ubi 

jury,  is  fully  and  ably  treated  in  an  arti-  supra.] 
cle  in  the  Law  Review,  No.  3,  for  May, 


62  LAW    OF    EVIDENCE.  [PART   IT. 

we  state  as  the  first  rule,  governing  in  the  production  of  cvi- 
dence,  that  the  evidence  offered  must  correspond  with  the  allegationSj 
and  he  conjinedjo  thejMJint  in  issue}  This  rule  supposes  the  alle- 
gations to  be  material  and  necessary.  Surplusage,  therefore,  need 
not  be  proved ;  and  the  proof,  if  offered,  is  to  be  rejected.  The 
term  surplusage  comprehends  whatever  may  be  stricken  from  the 
record,  without  destroying  tlie  plaintiff's  riglit  of  action  ;  as  if,  for 
example,  in  suing  the  defendant  for  breach  of  warranty  upon  the 
sale  of  goods,  he  should  set  forth,  not  only  that  the  goods  were  not 
such  as  the  defendant  warranted  them  to  be,  but  that  the  defendant 
tvell  hneiv  that  they  were  not.^  But  it  is  not  every  immaterial  or 
unnecessary  allegation  that  is  surplusage  ;  for  if  the  party,  in  stat- 
ing his  title,  should  state  it  with  unnecessary  particularity,  he 
must  prove  it  as  alleged.  Thus,  if,  in  justifyhig  the  taking  of 
cattle  damage-feasant,  in  which  case  it  is  sufficient  to  allege  that 
they  were  doing  damage  in  his  freehold,  he  should  state  a  seisin  in 
fee,  which  is  traversed,  he  must  prove  the  seisin  in  fee  ;^  for  if  this 
were  stricken  from  the  declaration,  the  plaintiff's  entire  title  would 
be  destroyed.  And  it  appears  that  in  determining  the  question, 
whether  a  particular  averment  can  be  rejected,  regard  is  to  be  had 
to  the  nature  of  the  averment  itself,  and  its  connection  with  the 
substance  of  the  charge,  or  chain,  rather  than  to  its  grammatical 
collocation  or  structure.* 

§  51a.  It  is  not  necessary,  however,  that  the  evidence  should 
bear  directly  upon  the  issue.  It  is  admissible  if  itjm^g  to  prove. 
the  issue,  or  constitutes  a  link  in  the  chain  of  proof  j  although, 
alone,  it  might  not  justify  a  verdict  in  accordance  with  it.^  Nor  is 
it  necessary  that  its  relevancy  should  appear  at  the  time  when  it  is 

1  See  Best's  Principles  of  Evidence,  Lake  v.  I\Iiimford,  4  Sm.  &  Marsli.  312 ; 
§  229-24'J.  [*Tlic  reason  for  this  rule,  Belden  v.  Lamb,  17  Conn.  441.  [*  Tarns 
and  the  necessity  for  a  strict  adherence  to  v.  Bullitt,  ;J5  Penn.  St.  oOy ;  Schuchardt 
it,  are  well  exi)lained  and  illustrated  in  v.  Aliens,  2  Wallace,  U.  S.  859  ;  Tucker  v. 
Malcomson  v.  Clayton,  13  Moore,  V.  C.  Peaslee,  3(3  N.  II.  167.]  Where  the  plain- 
C.  198. ]  tiff's  witness  denied  the  e.xistence  of  a 

2  Williamson  v.  Allison,  2  East,  446 ;  material  fact,  and  testified  that  persons 
Peppin  V.  Solomons,  5  T.  R.  406 ;  Brom-  connected  with  the  jilaintiff  had  offered 
field  I'.  Jones,  4  B.  &  C.  380.  liiui    money  to  assert  its  e.xistence;   the 

^  Sir  Erancis  Leke's  case,  Byer,  365 ;  plaintirt'  was  permitted,  not  only  to  prove 

2   Saund.  206   a,   note   22 ;    Stephen  on  the  fact,  but  to  disprove  the  subornation, 

Pleading,  261,  262 ;   Bristow  v.  Wright,  on  the  ground   that  this  latter  fact  had 

Uoug.  665 ;  Miles  v.  Sheward,  8  East,  7,  become  material  and  relevant,  inasmuch 

8,  9;  1  Smith's  Leading  Cases,  328,  note,  as  its  truth  or  falsehood  may  fairly  influ- 

*  1  Stark.  Evid.  386.  ence  the  belief  of  the  jury  as  to  the  whole 

s  McAllister's    case,    11    Shepl.    189;  case.     Melhuish  v.  Collier,  15  Ad.  &  El. 

Haughey  v.  Strickler,   2  Watts  &  Serg.  878,  N.  s. 
411;  Jones  v.  A'unzandt,  2  McLean,  596; 


CHAP.  I.]  THE  RELEVANCY   OF   EVIDEN'CE.  63 

ofTercd ;  it  l)cing  tlic  usual  course  to  receive,  at  any  proper  and 
convciiieut  stage  of  the  trial,  in  the  discretion  of  tlie  judge,  any 
evidence  which  the  counsel  shows  will  be  rendered  material  by 
other  evidence,  winch  he  undertakes  to  produce.  If  it  is  not  sub- 
sequently thus  connected  with  the  issue,  it  is  to  bo  laid  out  of  tho 


case.^ 

§  52.  This  rule  excludes  all  evidence  of  collateral  facts,  or  those 
which  are  incapable  of  affording  any  reasonable  presumption  or 
inference  as  to  the  principal  fact  or  matter  in  dispute ;  and  the 
reason  is,  that  such  evidence  tends  to  draw  away  the  minds  of  tho 
jurors  from  the  point  in  issue,  and  to  excite  prejudice,  and  mislead 
them ;  and  moreover  the  adverse  party,  having  had  no  notice  of 
such  a  course  of  evidence,  is  not  prepared  to  rebut  it.^  Thus, 
where  the  question  between  landlord  and  tenant  was,  whether  the 
rent  was  payalde  quarterly,  or  half-yearly,  evidence  of  the  mode  in 
which  other  tenants  of  the  same  landlord  paid  their  rent  was  held 
inadmissible.-^  And  where,  in  covenant,  the  issue  was  whether 
the  defendant,  who  was  a  tenant  of  the  plaintiif,  had  committed 
waste,  evidence  of  bad  husbandry,  not  amounting  to  waste,  was 
rejected.*  So,  where  the  issue  was,  whether  the  tenant  had  per- 
mitted the  promises  to  be  out  of  repair,  evidence  of  voluntary 
waste  was  held  irrelevant.^  This  rule  was  adhered  to,  even  in  the 
cross-examination  of  witnesses  ;  the  party  not  being  permitted,  as 
will  be  shown  hereafter,*'  to  ask  the  witness  a  question Jn^rcgard 
to  a  matter  not  relevant  to  the  issue,  for  the  purpose  of  afterwards 
contradicting  him.'^ 

1  McAllister's  case,  supra;  Van  Buren  apparently  irrelevant,  if  he  will  undertake, 
r.  Wells,  rJ  Wend.  203  ;  Crenshaw  v.  afterwards  to  sliow  its  relevancy,  hy  other 
Davenport,  6  Ala.  o'.iO  ;  'L'nzzlo  r.  Harclav,  evidence.  Haigh  v.  Belcher,  7  C.  &,  P. 
Id.  407  ;  Abnev  r.  Kin-rsland,  10  Ala.  3o5 ;  339. 

Yeatman  v.  Hart,  6  Humph.  375.     [*In  ^  Carter  v.  Tryke,   Peake's    Cas.   95. 

Harris  v.  Holmes,  30  Vt.  Pep.  352,  the  [See  also  Holingham  v.  Head,  4  Com.  B. 

point  is  thus  stated  :  In  cases  where  the  is-  Pep.  n.  s.  388.] 

sue  is  not  defined,  and  where  it  is  impos-  •»  Harris  v.  Mantle,  3  T.  P.  397.  See 
■  sible  to  anticipate  what  (|uesti()ns  may  arise  also  Balcetti  r.  Serani,  Peake's  Cas.  142; 
in  the  course  of  the  trial,  the  rule  in  re-  Purneaux  v.  Hutchins,  Cowp.  807;  Doe 
gard  to  tlie  admissihilitv  of  testimony  is,  v.  Sisson,  12  East,  (jl ;  Holcomhe  v.  Hew- 
that  it  should  be  received  if  it  would  be  son,  2  Campb.  391 ;  Viney  v.  Bass,  1  Psp. 
competent  in  any  view  of  the  case  claimed,  292;  Ciotliier  v.  Chapmim,  14  East,  331, 
and  which  miffht  be  thereatler  taken.    And  note. 

a  new  trial  will  not  be  granted  on  account  ^  Edge  v.  Pemherton,  12  M.  &  W.  18<. 

of  the  admission  of  such  evidence  unless  "^  See  infra,  §§  448,  449,  4u0. 

it  appears  that  the  evidence  so  admitted  "^  Crowley  v.  Page.  7  Car.  &  P^  789; 

was  improperlv  ai)plietl  in  the  decision  of  Harris  v.  'I'ippet,  2  Campb.  637  ;  Kex  r. 

tlie  case.]         "  Watson,  2  Stiu-k.  P.  lUJ ;  Connuonwealth 

2  fnfra,  §  448.  But  counsel  may,  on  r.  Buzzel,  Itl  Pick.  157,  158;  Ware  f. 
cross-examination,  inquire'as' to'  a'Tact  Ware,  8   Grecnl.  42;    [Coombs  v.  A\  in- 


64  LAW   OF   EVIDENCE.  [PART  II. 

§  53.  In  some  cases,  however,  evidence  has  been  received  of 
facts  which  happened  before  or  after  the  principal  transaction, 
and  which  had  no  direct  or  apparent  connection  with  it;  and 
therefore  their  admission  might  seem,  at  first  view,  to  constitute 
an  exccj)tion  to  this  rule.  But  those  will  be  found  to  have  been 
cases,  in  which  the  knowledge  or  intent  of  thq  party  was  a  material 
fact,  on  which  the  evidence, 'apparently  collateral,  and  foreign  to 
the  main  subject,  had  a  direct  bearing,  and  was  therefore  ad- 
mitted. Thus,  when  the  question  was,  whether  the  tlefendant, 
being  the  acceptor  of  a  bill  of  exchange,  either  knew  that  the 
name  of  the  payee  was  fictitious,  or  else  had  given  a  general 
authprity  to  the  drawer,  to  draw  bills  on  him  payable  to  fictitious 
persons,  evidence  was  admitted  to  show,  that  he  had  accepted 
other  bills,  drawn  in  like  manner,  before  it  was  possible  to  have 
transmitted  them  from  the  place  at  which  they  bore  date.^  So,  in 
an  indictment  for  knowingly  uttering  a  forged  document,  or  a 
counterfeit  bank-note,  proof  of  the  possession,  or  of  the  prior  or 
subsequent  utterance  of  other  false  documents  or  notes,  though  of 
a  different  description,  is  admitted,  as  material  to  the  question 
of  guilty  knowledge  or  intent,^  So,  in  actions  for  defamation,  evi- 
dence of  other  language,  spoken  or  written  by  the  defendant  at 
other  times,  is  admissible  under  the  general  issue,  in  proof  of  the 
spirit  and  intention  of  the  party,  in  uttering  the  words  or  publish- 
ing the  libel  charged ;  and  this,  whether  the  language  thus  proved 
be  in  itself  actionable  or  not.^  Cases  of  this  sort,  therefore,  in- 
stead of  being  exceptions  to  the  rule,  fall  strictly  within  it. 

Chester,  39  N.  H.  1].     A  further  reason  BiillarJ,  23  How.  U.   S.  172;   Butler  v. 

may  be,  tliat  the  evidence,  not  being  to  a  Collins,  12  Cal.  457 ;  French  v.  White,  6 

material  point,  cannot  be  the  subject  of  Duer,  254.] 

an  indictment  for  perjury.     Odiorne   v.         ^  Pearson  v.  Le  ISIaitre,  5  M.  &  Gr. 

Winkley,  2  Gall.  51,  53.  700,  6  Scott,  N.  R.  007,  s.  c. ;  Kustell  v. 

1  Giijson  V.  Hunter,  2  H.  Bl.  288 ;  IMi-  Macquister,  1  Campb.  49,  n. ;  Saunders 
net  V.  Gibson,  3  T.  R.  481 ;  1  H.  Bl.  569.  v.  Mills,  6  Bin?.  213  ;  Warwick  v.  Foulkes, 

2  Rex  V.  Wylie,  1  New  Rep.  92,  94.  12  M.  &  W.  507 ;  Long  v.  Barrett,  7  Ir. 
See  other  examples  in  McKenney  y.  Ding-  Law  R.  439;  8  Ir.  Law  R.  331,  s.  c.  on 
ley,  5  Greenl.  172;  Bridge  v.  Egglestou,  error;  [pout,  vol.  2,  §  418;  2  Starkie  on 
14  Mass.  245;  Rex  w.  Ball,  1  Campb.  324;  Slander,  53-57.  So  for  the  purpose  of 
Rex  V.  Roberts,  1  Campb.  399;  Rex  v.  proving  that  a  conveyance  of  property 
Houghton,  Russ.  &  Rv.  130 ;  Rex  v.  Smith,  made  by  a  bankrupt  was  fiadulent  under 
4  C."&  P.  411 ;  Rickman's  case,  2'East,  P.  the  United  States  Bankrupt  Act  of  1841, 
C.  1035;  Robinson's  case.  Id.  1110,  1112;  because  made  to  defraud  the  plaintiff  of 
Rex  V.  Northampton,  2  IM.  &  S.  262;  his  debt,  evidence  is  admissible  tending 
Commonwealth  r.  Turner,  3  Met.  R.  19.  to  show  that"  the  defendant  entertained 
See  also  Bottomley  v.  United  States,  1  such  fraudulent  intent  even  before  the 
Story,  R.  143,  144,  where  this  doctrine  is  passage  of  said  bankrupt  act.  Bigelow, 
clearly  expounded  by  Story,  J. ;  Pierce  v.  J.,  in  delivering  the  opinion  of  the  court, 
Hoffman,  24  Vermont,  525.     [* Castle  v.  said:   "The  inquiry  before  the  jury  iu- 


CHAP.  I.] 


THE   RELEVANCY   OF   EVIDENCE. 


65 


§  5oa.  In  proof  of  the  oicnership  of  lands,  by  acts  of  possession, 
the  same  latitude  is  allowed.  It. is  impossible,  as  has  been  ol)- 
served,  to  confine  the  evidence  to  the  precise  spot  on  which  a  sui>- 
poscd  trespass  was  commited ;  evidence  may  be  given  of  acts  done 
on  other  parts,  provided  there  is  such  a  common  character  of  local- 
ity between  those  parts  and  the  spot  in  question,  as  would  raise  a 
reasonable  inference  in  the  minds  of  the  jury  that  the  fJace  in 
dispute  belonged  to  the  party,  if  the  other  parts  did.  The  evidence 
of  such  acts  is  admissible  propria  vigore,  as  tending  to  prove  that 
he  who  did  them  is  the  owner  of  the  soil ;  though  if  they  were 
done  in  the  absence  of  all  persons  interested  to  dispute  them,  they 
are  of  less  Aveight.^ 

§  54.  To  this  rule  may  be  referred  the  admissibility  of  evidence 
of  the  general  character  of  the  parties. ^  In  civil  cases,  such  evi- 
dence is  not  admitted,  unless  the  nature  of  the  action  involves  the 
general  character  of  the  party,  or  goes  directly  to  affect  it.^     Thus, 


volved  two  essential  elements.  One  was 
the  establisliinent  of  a  fraudulent  design 
on  the  part  (if  the  defendant  towards  his 
creditors  ;  the  otiier  was  the  carrying-out 
and  fultihnent  of  tliat  design  through  tlie 
instrunientahty  of  the  bankrupt  act.  'J'o 
maintain  tlie  tirst  of  tliese  pro])ositions,  as 
one  link  in  tlie  chain  of  evidence,  proof 


evidence  within  any  precise  limit.  It 
must  necessarily  proceed  by  steps  or 
stages  leading  to  the  main  point  in  issue. 
In  the  case  at  bar,  wlien  the  plaintilf  iiad 
proved  an  intent  on  the  part  of  the  ilefeud- 
ant  to  conceal  his  property,  for  the  pur- 
pase  of  defrauding  his  creditors,  anterior 
to  the  x'assage  of  tlie  bankrupt  act,  he  liud 


of  an  intent,  prior  to  the  passage  of  the     advanced  one  step  towards  the  proof  of 


bankrupt  act,  to  defraud  the  plaintili'  of 
Ids  debt  by  a  fraudulent  concealment  and 
convey.ance  of  his  property,  was  clearly 
competent.  Whenever  the  intent  of  a. 
party  forms  part  oT  tlie  m  a  tTeF_inissue^ 
upon  the  pleadings,  evidence  niay  be  giv- 
en  of  other  acts,  not  in  issue,  provided 
they  tend  to  establish  the  intent  of  the 
])arty  in  doing  the  acts  in  (inestion.    Kosc. 


the  real  issue  before  the  jury,  and  if  he 
satisfied  the  jury  that  tliis  intent  once 
harbored  continued  in  the  mind  of  the 
defendant,  and  was  carried  out  by  availing 
himself  of  the  provisions  of  the  bankrupt 
act,  he  had  thus  proved  by  a  legitimate 
chain  of  evidence  the  matter  set  up  in  his 
specification  as  a  ground  for  invalidating 
the  defendant's  discharge  in  bankrupicy." 
Cook  V.  Moore,  11  Cush.  -JlG-JlT.]    [»Tlie 


Crim.  Ev.  (3d  Am.  ed.)  9'J.     The  reascm 

for  this  rule  is  obvious.     The  only  mode  party  to  a  suit,  if  admissible  as  a  witness, 

of  showing  a  present  intent  is  often  to  be  may  testify  to  his-motive  in  doing  an  act, 

found  in  proof  of  a  like  intent  previously  if   that   become    material.     Wlieelden  v. 

entertained.     The  existence  in  the  mind  Wilson,  4-4  Me.  1.] 

of  a  deliberate  design  to  do  a  certain  act,  ^  Jones  v.  Williams,  2  M.  &  W.  326, 

when  once  proved,  may  properly  lead  to  per  I'arke,  B.     And  see  Doe  v.  Kemp,  7 

the  inference  that  the  intent  once  harbored 


continued  and  was  carried  into  ettect  by 
acts  long  subse<iuent  to  the  origin  of  the 
motive  by  whi(-h  they  were  iirompted. 
I'.ven  in  criminal  cases,  acts  and  declara- 
tions of  a  j>arty  made  at  a  former  time  are 
admissible  to  prove  the  intent  of  the  same 
person  at  the  time  of  the  commission  of 
an  oUence.  2  Phil.  Ev.  (3d  ed.)  iyH ; 
Eosc.  Crim.  Ev.  (3d  Amer.  ed.)  'J5.  In 
the  proof  of  cases  involving  the  motives 
of  men  as  intluencing  and  giving  character 
to  their  acts,  it  is  impossible  to  confine  the 


Bing.  332;   2  Bing.  N.  C.  102;   [*  Simp- 
son I'.  Dendy,  30  Eng.  L.  &  Eq.  3tJG]. 

-  [Conuuonwealth  r.  Webster,  5  Cush. 
324,  325.     See  as  to  character  of  u-itm^ses, 

j,„si,  §  -im.] 

3  Attorney-General  v.  Bowman,  2  B. 
&  P.  o32,  expressly  adopted  in  Eowler^  f. 
iEtna  Eire  Ins.  Co.  6  Cpwen,  tj73,  075; 
Anderson  r.  Long,  10  S.  &  K.  55;  Ilum- 
phrev  V.  Humphrey,  7  Conn.  110;  Nash 
r.  Gilkeson,  4  S.  &  R.  352;  Jctlries  »'. 
Harris,  3  Hawks,  105  ;  [Pratt  v.  Andrews, 
4  Comst.  4y3 ;  Porter  v.  Seller,  23  Penu. 


6* 


66 


LAW    OF  EVIDEN'CE. 


[part  II. 


evidence  impeaching  the  previous  general  character  of  the  wife  or 
daughter,  in  regard  to  chastity,  is  admissible  in  an  action  by  the 
husband  or  father  for  seduction ;  and  this,  again,  may  be  rebutted 
by  counter  proof.^  But  such  evidence,  referrino-  to  a  tune  subse- 
quent  to  the  act  complained  of,  is  rejected.^  And  generally,  in 
actipns  of  tort,  wlierever  the  defendant  is  charged  with  fraud  from 
mere  circumstances,  evidence  of  his  general  good  character  is 
admissible  to  repel  it.^     So,  also,  in  criminal  prosecutions,  the 


St.  R.  424;  see  also  24  lb.  401,  408; 
Goldsmith  i'.  Picard,  27  Ala.  142 ;  Lander 
V.  Seaver,  32  Vt.  114.] 

1  Bate  V.  Hill,  1  C.  &  P.  100 ;  Yerry  v. 
Watkius,  7  C.  vi.  P.  308;  Carpenter  v. 
Wahl,  11  Ad.  &  Kl.  803 ;  3  P.  &  I).  457, 
s.  c. ;  Elsam  v.  Faucett,  2  Esp.  562 ;  Dodd 
V.  Norris,  3  Canii)b.  519.  See  contra,  Mc- 
Rea  V.  Lilly,  1  Iredell,  R.  118. 

2  Elsam  V.  Eaucett,  2  Esp.  562 ;  Coote 
r.  Berty,  12  Mod.  232.  The  rule  is  the 
same  in  an  action  by  a  woman,  for  a  breach 
of  a  promise  of  marriage.  See  .Tohnson  v. 
Caulkins,  1  Johns.  Cas.  116  ;  Boynton  v. 
Kellogg,  3  Mass.  189  ;  Foulkes  v.  Sellway, 
3  Esp.  23G  ;  Bamfield  v.  Massey,  1  Campb. 
460 ;  Dodd  o.  Norris,  3  Campb.  519. 

'■^  Ruan  V.  Perry,  3  Caines,  120.  See 
also  Walker  v.  Stephenson,  3  Esp.  284. 
This  case  of  Ruan  r.  Perry  has  some- 
times been  mentioned  with  disapproba- 
tion ;  but,  wlien  correctly  understood,  it 
is  conceived  to  be  not  opposed  to  the  well- 
settled  rule,  that  evidence  of  general  char- 
acter )5  aflmissible  only  in  cases  where  it 
is  involved  in  the  i:-;sue.  In  that  case  the 
commander  of  a  national  frigate  was  sued 
in  ti-espass,  for  seizing  and  detaining  the 
plaintiff's  vessel,  and  taking  her  out  of  her 
course,  by  means  whereof  she  was  cap- 
tured by  an  enemy.  The  facts  were  clear- 
ly proved  ;  but  the  question  was,  whether 
the  defendant  acted  in  honest  obedience 
to  his  instructions  from  the  Navy  Depart- 
ment, which  were  in  the  case,  or  with  a 
frandidml  iiUejit,  and  in  collusion  with  the 
captors,  as  the  plaintiff  alleged  to  the 
jury,  and  attemi)ted  to  sustain  by  some  of 
the' circumstances  proved.  It  was  to  re- 
pel tins  imputation  of  fraudulent  intent, 
inferred  from  slight  circumstances,  that 
tiie  defendant  wiis  permitteil  to  appeal  fo 
his  own  "fair  and  good  reputation."  And 
in  confirming  this  decision  in  bank,  it  was 
observed,  that  "  In  actions  of  tort,  and  es- 
pecially charging  a  defendant  with  gross 
dejjravity  and  fraud,  upon  circumstances 
merely,  evidence  of  uniform  integrity  and 
good  cliaracter  is  oftentimes  the  only  tes- 
timony which  a  defendant  can  oppose  to 
suspicious  circumstances."  On  this  ground 


this  case  was  recognized  by  the  court  as 
good  law,  in  Fowler  v.  ^Etna  Fire  Ins.  Co. 
6  Cowen,  675.  And  five  years  afterwards, 
in  Townsend  v.  Graves,  3  Paige,  455,  456, 
it  was  again  cited  with  approbation  by 
Chancellor  Walworth,  who  laid  it  down  as 
a  general  rule  of  evidence,  '"  that  if  a  par- 
ty is  charged  with  a  crime,  or  any  other 
act  involving  moral  turpitude,  which  is 
endeavored  to  be  fastened  upon  lum  by  cir- 
cumstantial evidence,  or  by  the  testimony 
of  witnesses  of  doubtful  credit,  he  may  in- 
troduce proof  of  his  former  good  charac- 
ter tor  honesty  and  integi'ity,  to  rebut  the 
presumption  of  guilt  arising  from  such 
evidence,  which  it  may  be  impossible  for 
him  to  contradict  or  explain."  In  Gougli 
V.  St.  John,  16  Wend.  646,  the  defendant 
was  sued  in  an  action  on  the  case,  for  a 
false  representation  as  to  the  solvency  of 
a  third  person.  The  representation  itself 
was  in  writing,  and  verbal  testimony  waa 
offered,  tending  to  show  that  the  defend- 
ant knew  it  to  be  false.  To  rebut  this 
charge,  proof  that  the  defendant  sustained 
a  good  character  for  honesty  and  fairness 
in  dealing,  was  offered  and  admitted. 
Cowen,  J.,  held,  that  the  fraudulent  intent 
Avas.  a  necessary  inference  of  law  from  the 
falsity  of  the  rei)resLmtation ;  and  that  the 
evidence  of  cliaracter  was  improperly  ad- 
mitted. He  proceeded  to  cite  and  con- 
demn the  case  of  Ruan  v.  Perry,  as  favor- 
ing the  general  admissibility  of  evidence 
of  character  in  civil  actions,  for  injuries 
to  property.  But  such  is  manifestly  not 
the  doctrine  of  that  case.  It  only  decides, 
that  M'here  intention  (not  knonicdjie)  is  the 
point  in  issue,  and  the  proof  consists  of 
slight  circumstances,  evidence  of  character 
is  admissible.  The  other  judges  agreed 
that  the  evidence  was  improperly  admit- 
ted in  that  case,  but  said  nothing  as  to  the 
case  of  Ruan  v.  Perry.  They  denied, 
however,  that  fraud  was  in  such  cases  an 
inference  of  law. 

The  ground  on  which  eviilence  of  good 
character  is  admitted  in  criminal  prosecu- 
tions is  this,  that  the  intent  with  which  the 
act,  charged  as  a  crime,  was  done,  is  of 
the  essence  of  the  issue ;  agreeably  to  the 


CHAP.  I.] 


THE   RELEVANCY    OF    EVIDENCE. 


67 


charge  of  a  rai)C,  or  of  an  assault  with  intent  to  commit  a  rape,  is 
considered  as  involving  not  only  the  general  character  of  tlie 
prosecutrix  for  chastity,  but  the  particular  fact  of  her  previous 
criminal  connection  with  the  prisoner,  though  not  with  otlier  per- 
sons.^ And  in  all  cases,  where  evidence  is  admitted  touching  the 
general  character  of  the  party,  it  ought  manifestly  to  bear  refer- 
ence to  the  nature  of  the  charge  against  him.^ 

§  55.  It  is  not  every  allegation  of  fraud  that  may  be  said  to  j)nt 
the  character  in  issue  ;  for,  if  it  were  so,  the  defendant's  character 
would  be  put  in  issue  in  the  ordinary  form  of  declaring  in  assump- 
sit. This  expression  is  technical,  and  confined  to  certain  actions, 
from  the  nature  of  which,  as  in  the  preceding  instances,  the 
character  of  the  parties,  or  some  of  them,  is  of  particular  impor- 
tance. This  kind  of  evidence  is  therefore  rejected^  wherever  the 
f^eneral  character  is  involved  by  the  plea  only,  and  not  by  thg 
nature  of  the  action.^ _^  Nor  is  it  received  in  actions  of  assault  and 
battery  ;  *  nor  in  assumpsit ;  ^  nor  in  trespass  on  the  case  for  mali- 
cious prosecution  ;  ^  nor  in  an  information  for  a  penalty  for  violation 
of  the  civil,  police,  or  revenue  laws ; "  nor  in  ejectment,  brought 
in  order  to  set  aside  a  will  for  fraud  committed  by  the  defendant.^ 
Whether   evidence   impeaching   the    plaintiffs    previous    general 


maxim, "  Nemo  reus  est,  nisi  mens  sit  rea ; " 
and  the  prevailing  character  of  the  party's 
mind,  as  evinced  by  the  ])revious  habit  of 
his  life,  is  a  material  element  in  discover- 
injj  that  intent  in  the  instance  in  question. 
Upon  the  same  principle,  the  same  evi- 
dence ought  to  be  admitted  in  all  other 
cases,  whatever  be  the  form  of  jjrocecitling, 
where  the  intent  is  material  to  be  found 
as  a  fact  involved  in  the  issue. 

1  Rex  V.  Clarke,  'l  Stark.  241 ;  1  Phil. 
&  Am.  on  Evid.  4'.i0 ;  Low  v.  Mitchell,  6 
Sliepl.  372 ;  Commonwealth  v.  Murphy, 
14  Mass.  MS7;  2  Stark.  Evid.  (by  Mtn- 
calf)  o(3<.t,  note  (1);  Rex  v.  ^hirtin,  6  P. 
&  C.  562;  Rex  v.  Ilodson,  Russ.  &  Rv- 
211;  Regina  v.  Clay,  5  Cox,  Cr.  C.  140. 
But  in  an  action  on  the  case  for  seduction, 
evidence  of  particular  acts  of  unchastity 
witli  other  persons  is  admissible.  Verry 
V.  Watkins,  7  C.  &  P.  308.  Where  one  is 
charged  with  keeping  a  house  of  ill  tame 
qflur  the  statute  went  into  operation,  evi- 
dence of  the  bad  reputation  of  the  house 
before  that  time,  was  held  admissible,  as 
conducing  to  jirove  that  it  sustained  the 
same  reputation  afterwards.  Cadwell  i'. 
The  State.  17  Conn.  R.  407. 

2  Douglass  I'.  Tousey,  2  Wend.  852. 

*  Anderson  v.  Long,  10  S.  &  R.   55; 


Potter  V.  Webb  et  ol.  6  Greenl.  14  ;  Greg- 
ory V.  Tliomas,  2  Bibb,  286. 

*  Givens  r.  Bradley,  3  Bibb,  192.  But 
in  the  Admiralty  Courts,  where  a  seaman 
sues  against  the  master  for  damages,  for 
illegal  and  unjustifiable  punishment,  liis 
general  conduct  and  character  during  the 
vovage  are  involved  in  the  issue.  Pettin- 
gill  V.  Dinsmore,  Daveis,  R.  208,  214. 

5  Nash  V.  Gilkeson,  5  S.  &  R.  352. 

''  Gregory  v.  Thomas,  2  Bibb,  280. 

"  Attorney-General  r.  Bowman,  2  B.  & 
P.  532,  note. 

s  Goodright  v.  Hicks,  Bull.  X.  P.  206. 
[Xor  is  the  i-haracter  of  the  plaintiff  in- 
volved in  the  issue,  where  the  action  is  tin 
a  policy  of  insurance  against  loss  by  fire, 
and  the  defence  is  that  the  fire  was  occa- 
sioned l)v  the  wilful  and  fraudulent  act  of 
the  plaintiff.  The  nature  of  the  action 
excludes  all  such  inquiry  or  evidence  in 
relation  thereto.  Schmidt  v.  New  York, 
&c..  Ins.  Co.  1  Gray,  52'.),  535;  nor  in  an 
action  for  commencing  a  suit  against  the 
plaintiff  without  authority,  where  the 
plaintiff  at  the  trial  gives  ni>tice  that  he 
shall  claim  no  damages  for  s|H'cial  injury 
to  his  character  by  reason  of  the  suit. 
Smith  V.  Hyndman,  10  Cush.  554.] 


6S 


LA'W  OF   EVIDENCE. 


[PxVRT   II, 


character  is  admissible  in  an  action  of  slander,  as  affecting  the 
question  of  damages,  is  a  point  which  has  been  much  controverted  ; 
but  the  weight  of  authority  is  in  favor  of  admiting  such  evidence.^ 
But  it  seems  that  the  character  of  the  party,  in  regard  to  any 
particular  trait,  is  not  in  issue,  unless  it  be  the  trait  which  is 
involved  in  the  matter  charged  against  him ;  and  of  this  it  is  only 
evidence  of  general  reputation.,  which  is  to  be  admitted,  and  not 
positive  evidence  of  general  bad  conduct? 


1  2  Starkie  on  Slander,  88,  89-95,  note ; 
Root  V.  King,  7  Cowen,  013 ;  Bailey  v. 
liyde,  '?>  Conn.  463 ;  Bennett  v.  Hyde,  6 
Conn.  24 ;  Douglass  v.  Tousey,  2  Wend. 
353 ;  Inman  v.  Foster,  8  Wend.  t5U2 ; 
Lamed  r.  Buffington,  3  Mass.  552 ;  Wal- 
cott  V.  Hall,  G  JMass.  514  ;  Koss  r.  Lapham, 
14  Mass.  275 ;  Bodwell  v.  Swan,  3  Tick. 
378;  Buford  v.  McLuny,  1  Nott  &  Mc- 
Cord,  268;  Sawyer  v.  Eifert,  2  Nott  & 
McCord,  511 ;  lung  v.  Waring  et  ux.  5 
Esp.  14 ;  Rodriguez  v.  Tadmire,  2   Esp. 

721;  V.  Moore,  1    M.   &  S.  284; 

Earl  of  Leicester  v.  Walter,  2  Campb. 
251;  Williams  v.  Callendar,  Holt's  Cas. 
,307;    2  Stark.   Evid.    216.      In  Foot  v. 

''"'Tracy,  1  Johns.  45,  the  Supreme  Court  of 
New  York  was  equally  divided  ujjon  tliis 
question:  Kent  and  Tliompson,  Js.,  being 
in  favor  of  admitting  the  evidence,  and 
Livingston  and  Tompkins,  Js.,  against  it. 
[In  a  later  case,  Springstcin  v.  Field,  An- 
thon,  185,  Spencer,  J.,  said  he  had  no 
doubt  about  the  admissibility  of  the  evi- 
dence ottered  in  the  case  of  Foot  v.  Tracy, 
Init  for  particular  reasons  connected  with 
that  case,  he  forbore  to  express  any  opin- 
ion on  the  hearing  of  the  same.  In  Pad- 
dock V.  Salisbury,  2  Cowen,  811,  the  ques- 
tion came  again  before  the  Supreme  Court 
of  New  York,  and  the  evidence  was  ad- 
mitted in   mitigation  of  damages,  under 

/the  general  i^am^  which  was  the  only 
plea  iii:*tTiar  cascT]  In  England,  according 
to  the  later  authorities,  evidence  of  the  gen- 
eral bad  character  of  the  plaintiff  seems 
to  be  regarded  as  irrelevant,  and  there- 
fore inadmissible.  Phil.  &  Am.  on  Evid. 
488,  489  ;  Cornwall  v.  Richardson,  Ry.  & 
Mood.  305;  Jones  v.  Stevens,  11  Price,  235. 
In  this  last  case  it  is  observable,  that 
though  tlie  reasoning  of  the  learned 
judges,  and  esi)ecially  of  Wood,  B.,  goes 
against  the  admission  of  the  evidence, 
even  though  it  be  of  the  most  general  na- 


ture, in  any  case,  yet  the  record  before 
the  court  contained  a  plea  of  justification 
aspersing  the  professional  character  of  the 
plaintiff  in  general  averments,  without 
stating  any  particular  acts  of  bad  con- 
duct ;  and  the  point  was,  whether,  in  sup- 
port of  this  plea,  as  well  as  m  contradic- 
tion of  the  declaration,  the  defendant 
should  give  evidence  that  the  idaintiff  was 
of  general  bad  character  and  repute,  in 
his  practice  and  business  of  an  attorney. 
The  court  strongly  condemned  the  plead- 
ing as  reprehensible,  and  said  that  it  ought 
to  have  been  demurreil  to,  as  due  to  the 
court,  and  to  the  judge  who  tried  the 
cause.  See  J'Anson  v.  Stuart,  1  T.  R. 
747 ;  2  Smith's  Leading  Cases,  37.  See 
also  Rhodes  v.  Bunch,  3  McCord,  66.  In 
AVilliston  v.  Smith,  3  Kerr,  443,  which 
was  an  action  for  slander  bj'  charging  the 
defendant  with  larceny,  the  delendant,  in 
mitigation  of  damages,  ottered  evidence  of 
the  j)laintiffs  general  bad  character  ;  which 
the  judge  at  Nisi  Prius  rejecteil ;  and  the 
court  held  the  rejection  ju-oper ;  observ- 
ing, that  had  the  evidence  been  to  the 
plaiutiff"'s  general  character  for  honesty,  it 
might  have  been  admitted.  [See  post,  vol. 
2,-§  424.] 

■■^  Swift's  Evid.  140 ;  Ross  v.  Lapham, 
14  Mass.  275;  Douglass  v.  Tousey,  2 
Wend.  352 ;  Andrews  v.  Vanduzer,  11 
Johns.  38 ;  Root  v.  King,  7  Cowen,  613 ; 
Newsam  v.  Carr,  2  Stark.  69  ;  Sawyer  v. 
Eifert,  2  Nott  &  McCord,  911  [Stone  v. 
Varnev,  7  Met.  86 ;  Leonard  i'.  Allen,  11 
Cush.  241,  245;  Watson  v.  Moore,  2  lb. 
133;  Orcutt  v.  Ranney,  10  lb.  183]. 
[  *  The  best  evidence  of  good  character 
seems  to  be  that  the  witness,  if  thoroughly 
conversant  with  the  history  of  the  party 
for  years,  never  heard  any  question  raised 
in  regard  to  it.  Gandolib  v.  State,  11 
Ohio,  N.  s.  114.] 


CHAP.  II.]  THE  SUBSTANCE   OF   THE   ISSUE.  09 


CHAPTER    11. 

OF   THE   SUBSTANCE   OF   THE   ISSUE. 

[  *  §  56.  Sufficient  to  prove  substance  of  issue,  unless  in  matters  of  description. 

57.  How  far  an  allegation  is  descriptive,  depends  upon  its  form  and  subject-matter. 

58.  Allegations  as  to  contracts,  prescriptions,  and  character,  held  descriptive. 

59.  Traverse,  modo  et  forma  only  puts  in  issue  the  substance  of  the  averments. 

60.  Allegation,  with  or  without  videlicet,  will  not  generally  affect  the  proof,  but 

sometimes  it  will. 

61.  Allegations  of  time,  place,  quantity,  quality,  value,  and  in  aggravation  of  dam- 

ages, not  material  to  be  strictly  proved,  unless  descriptive. 

62.  In  local  actions,  place  material,  and  so  of  the  kind,  and  boundaries,  of  land. 

63.  Variance  consists  in  a  departure  from  legal  proof. 

64.  Circumstantial  averment  not  required  to  be  proved,  unless  requisite  to  identity. 

65.  The  same  latitude  in  proving  only  the  substance  of  the  issue,  in  criminal  as 

in  civil  cases. 

66.  Slight  variances  in  description  of  contracts  often  material. 

67.  Distinction  between  redundancy  of  allegation,  and  of  proof. 

68.  Consideration  must  be  laid  fully,  and  proved  as  hiid. 

69.  Description  of  deeds  must  be  accm-ate  ;  may  be  by  import ;  on  pi/a-  must  be 

preciselj'  accurate. 

70.  Records,  as  inducement,  must  be  substantially  proved  ;  but  strictly,  if  it  be 

the  ground  of  action. 

71.  Prescriptive  grants  and  rights  must  be  strictly  proved. 

72.  Less  strictness  required  in  proof  of  prescriptions  upon  which  the  action  is 

foundotl.    Excess  of  proof  will  not  vitiate. 

73.  Most  questions  of  variances  may  be  relieved  by  amendment.] 

§  56.  A  SECOND  RULE,  wliicli  govems  in  the  production_of_evi- 
deiice,  is  that  it  is  sufficient,  if  the  substance  oftheissuehep'oved.^ 
In  the  application  of  this  rule,  a  distinction  is  made  between 
allegations  of  matter  of  suhdance,  and  allegations  of  matter  of 
essehiidl  deslinp{idK'~TTielorin&Fmkjl6e  siiB'stantialiy  provetl ;  but 
the  latter  iiiusl  be  proved  Avith  a  degree  of  strictness,  extending  in 
some  cases  even  to  literal  precision.  No  allegation,  descriptive  of 
the  identity  of  that  which  is  legally  essential  to  the  claim  or  charge, 
can  ever  be  rejected.^     Thus  in  an  action  of  malicious  prosecution, 

1  Stark.  T.vid.  373 ;  Purcell  r.  Macna-    4-56 ;    Ferguson  r.    Harwood.    7    Cranch, 
mara,  9  East,  1(30  ;  Stodilard  r.  Palmer,  3     408,  413  [/)osY,  vol.  2,  §  2-llJ. 
B.  &  C.  4 ;  Turner  v.  Evles,  3  B.   &  P. 


:i^ 


j^ 


70  LAW   OF   EVIDEN'CE.  [PAllT   II. 

the  plaintiff  alleges  that  he  was  acquitted  of  the  charge  on  a 
certain  day ;  here  the  substance  of  the  allegation  is  the  acquittal, 
and  it  is  sufhcient,  if  this  fact  be  proved  on  any  day,  the  time  not 
l)oing  material.  But  if  the  allegation  be,  that  the  defendant  drew 
a  bill  of  exchange  of  a  certain  date  and  tenor,  here  every  allegation, 
even  to  the  precise  day  of  the  date,  is  descri}>tive  of  the  bill,  and 
essential  to  its  identity,  and  must  be  literally  proved.^  So  also,  "Scsv^^^ 
we  have  already  seen,  in  justifying  the  taking  of  cattle  damage- 

I  feasant,  because  it  was  ujjon  the  close  of  the  defendant,  the  alle- 
gation of  a  general  freehold  title  is  sufficient ;  but  if  the  party 
states,  that  he  was  seised  of  the  close  in  fee,  and  it  be  traversed, 
the  precise  estate,  which  he  has  set  forth,  becomes  an  essentially 
descriptive  allegation,  and  must  be  proved  as  alleged.  In  this 
case  the  essential  and  non-essential  parts  of  the  statement  are  so 
connected,  as  to  be  incapable  of  separation,  and  therefore  both  are 
alike  material.^ 

§  57.  "Whether  an  allegation  is  or  is  not  so  essentially  descrip- 
tive, is  a  point  to  be  determined  by  the  judge  in  the  case  before 
him ;  and  it  depends  so  much  on  the  particular  circumstances, 
that  it  is  difficult  to  lay  down  any  precise  rules  by  which  it  can 
in  all  cases  be  determined.  It  may  depend,  in  the  first  place, 
on  the  nature  of  the  averment  itself,  and  the  subject  to  which 
it  is  applied.  But  secondly,  some  averments  the  law  pronounces 
formal,  which  otherwise,  would,  on  general  principles,  be  descrip- 
tive. And  thirdli/,  the  question,  whether  others  are  descriptive 
or  not,  will  often  depend  on  the  technical  manner  in  which  they  are 
framed. 

§  58.  In  the  first  place,  it  may  be  observed,  that  any  allegation, . 
which  narrows  and  limits  that,  which  is  essential,  is  necessarily 
descriptive.  Thus,  in  contracts,  libels  in  writing,  and  written  instru- 
ments in  general,  every  part  operates  by  way  of  description  of  the 
whole.  In  these  cases,  therefore,  allegations  of  names,  sums, 
magnitudes,  dates,  durations,  terms,  and  the  like,  being  essential 
to   the   identity  of  the  writing   set  forth,  must,  in   general,  be 

1  3  B.  &  C.  4,  5 ;  Glassford   on  Evid.  v.  Palmer,  3  B.  &  C.  4,  will,  on  closer  ex- 

309.  ainiiiation,  result  merely  in  this,  that  mut- 

■^  Stephen  on  Pleadinfr,  201,  202,  419;  ters  of  description  are  matters  of  substance, 
Turner  v.  Eyles,  3  15.  &  P.  45() ;  2  Saund.  when  they  go  to  the  identity  of  any  thing 
200  a,  n.  22  ;  Sir  Francis  Leke's  ca.se,  material  to  the  action.  Thus  the  rule  will 
Dyer,  304  />.  Perhaps  tlie  distinction  tak-  stand,  as  oritiinally  stated,  that  the  sub- 
en  by  Lord  Kllenboroufjli,  in  Purcell  v.  stance,  and  tliis  alone,  must  be  proved, 
!Macnamara,  and  recognized  in  Stoddard 


CHAP.  II.]  THE   SUBSTANCE   OF   THE   ISSUE.  71 

precisely  proved.^  Nor  is  it  material  whether  the  action  be  founded 
in  contract  or  in  tort ;  for  in  either  case,  if  a  contract  be  set  forth, 
every  allegation  is  descrijitive.  Thus,  in  an  action  on  the  case 
for  deceit  in  the  sale  of  lambs  by  two  defendants,  jointly,  proof 
of  sale  and  warranty  by  one  only,  as  his  separate  property,  was 
held  to  be  a  fatal  variance.^  -So,  also,  if  the  contract  described  be 
absolute,  but  the  contract  proved  be  conditioital,  or  in  the  alterna- 
tive, it  is  fatal.3  The  consideration  4^  equally  descriptive  and 
material,  and  must  be  strictly  proved  as  alleged.^  Prescriptions, 
also,  being  founded  in  grants  presumed  to-be  lost  from  lapse  of 
time,  must  be  strictly  proved  as  laid ;  for  every  allegation,  as  it  is 
supposed  to  set  forth  that  which  was  originally  contained  in  a  deed, 
is  of  course  descriptive  of  the  instrument,  and  essential  to  the 
identity  of  the  grant.^  An  allegation  of  the  character  in  which 
the  plaintiff  sues,  oi"  of  his  title  to  damages,'  though  sometimes 
superfluous,  is  generally  descriptive  in  its  nature,  and  requires 
proof.*^ 

§  59.  Secondly,  as  to  those  averments  which  tlie  law  pronounces 
fori-hal,  though,  on  general  principles,  they  seem  to  be  descriptive 
and  essential ;  these  a^  rather  to  be  regarded  as  exceptions  to  the 
rule  already  stated,  and  are  allowed  for  the  sake  of  convenience. 
Therefore,  though  it  is  the  nature  of  a  traverse  to  deny  the  alle- 
gation in  the  manner  and  form  in  which  it  is  made,  and,  consequently 
to  put  the  party  to  prove  it  to  be  true  in  the  manner  and  form,  as 
well  as  in  general  effect ; "  yet  where  the  issue  goes  to  the  point  of 
the  action,  these  words,  7nodo  et  formd,  are  but  words  of  form.^ 
Thus,  in  trover,  for  example,  the  allegation,  that  the  plaintiff  lost 
the  goods  and  that  the    defendant   found   them   is   regarded   as 

'  i^Bristow  V.  Wriglit,  Doug.  665,  667 ;  Robertson  v.  Lynch,  18  Johns.  451 ;  \post, 

Churchiil  v.  Wilkms,  1  T.  11.  447;  1  Stark.  §  68). 

Evid.  386,  388.  "  iVIorewood  v.  Wood,  4  T.  R.  157; 
-  Weal  ?.'.  Kino-,  et  aJ.  12  East,  452.  Rogers  v.  Allen,  1  Campb.  309,  314,  315, 
3  Penny  V.  Torter,  2  East,  2;  Lopez  v.  note  (a).  But  proof  of  a  more  ample 
De  Tastei,  1  B.  &  B.  538 ;  Higgins  v.  right  than  is  alleged,  will  be  regarded  as 
Dixon,  10  Jur.  376;  llilt  t'.  Campbell,  6  more  redundancy.  Johnson  i-.  Thorough- 
Greenl.  109  ;  Stone  v.  Knowlton,  3  Wend,  good.  Hob.  64  ;  Bushwood  v.  Pond,  Cro. 
374.  See  also  Saxton  v.  Jolnison,  10  El.  722 ;  Bailifls  of  Tewksbury  c.  Brick- 
Johns.  581 ;  SneU  v.  Moses,  1  Jolnis.  90 ;  nell,  1  Taunt.  142 ;  Burges  v.  Steer,  1 
Crawford  v.  Morrell,  8  Johns.  153;  Bav-  Show,  347;  4  Mod.  89,  s.  c.  {post,  §  71]. 
lies  V.  Fettvplace,  7  IMass.  325 ;  Robbins  '^  1  Stark.  Evid.  390  ;  Moises  v.  Thorn- 
?-.  Otis  1  Pick.  368;  Harris  v.  Ravnor,  ton,  8  T.  R.  303,  308;  Berryman  t'.  Wise, 
8  Pick.  541 ;  White  v.  Wilson,  2  Bos.  &  4  T.  R.  366. 
Pnl.  116  ;  Whitaker  v.  Smith,  4  Pick.  "•  Stephen  on  Pleading,  213. 
83;  Lower  v.  AV inters,  7  Cowen,  263;  ^  Trials  per  pais,  308  (Oth  ed.);  Co. 
Alexander  v.  Harris,  4  Cranch,  2U9.  Lit.  281  b. 
*  Sallow  V.  Beaumont,  2  B.  &  Aid.  765 ; 


72  LAW  OF   EVIDENCE.  [PART  II. 

purely  formal,  requiring  no  proof;  for  the  gut  of  the  action  is 
the  conversion.  So,  in  indictments  for  homicide,  though  the  death 
is  alleged  to  have  been  caused  by  a  particular  instrument,  this 
averment  is  but  formal ;  and  it  is  sufficient  if  the  manner  of  death 
agree  in  su])stance  with  that  which  is  charged,  though  the  instru- 
ment be  dilfcrent ;  as,  if  a  wound  alleged  to  have  been  given  with 
a  sword,  l)e  proved  io  have  been  inflicted  with  an  axe.^  But, 
where  the  traverse  is  of  a  collateral  point  in  jAeading,  there  the 
words,  modo  et  formd,  go  to  the  substance  of  the  issue,  and  are 
descriptive,  and  strict  proof  is  required ;  as,  if  a  feoffment  is 
alleged  by  deed,  which  is  traversed  modo  et  forma,  evidence  of 
a  feoffment  without  deed  will  not  suffice.^  Yet,  if  in  issues  upon 
a  collateral  point,  where  the  affirmative  is  on  the  defendant, 
partial  and  defective  proof  on  his  part  should  show  that  the 
plaintiff  had  no  cause  of  action,  as  clearly  as  strict  and  full  proof 
would  do,  it  is  sufficient.^ 

§  GO.  Thirdly,  as  to  those  averments,  whose  character,  as  being 
descriptive  or  not,  depends  on  the  manner  in  which  they  are  stated. 
Every  allegation,  essential  to  the  issue,  must,  as  we  have  seen,  be 
proved,  in  whatever  form  it  be  stated  ;  and  things  immaterial  in 
their  nature  to  the  question  at  issue  may  be  omitted  in  the  proof, 
tliough  alleged  with  the  utmost  explicitness  and  formality.  There 
is,  however,  a  middle  class  of^circumstaiices^  not  essential  in  their 
nature,  which  may  become  so  by  being  inseparably  connected 
with  the  essential  allegations.^  These  must  be  proved  as  laid, 
unless  they  are  stated  under  a  videlicet ;  the  office  of  which  is  to 
mark,  that  the  party  does  not  undertake  to  prove  the  precise 
circumstances  alleged ;  and  in  such  cases  he  is  ordinarily  not 
h(jlden  to  prove  them.*  Thus  in  a  declaration  upon  a  bill  of 
exchange,  the  date  is  in  its  nature  essential  to  the  identity  of  the 
bill,  and  must  be  precisely  proved,  though  the  form  of  allegation 
were,  "  of  a  certain  date,  to  wit,"  such  a  date.  On  the  other 
hand,  in  the  case  before  cited,  of  an  action  for  maliciously  prose- 
cuting the  plaintiff  for  a  crime,  whereof  he  was  acquitted  on 
a  certain  day  ;  the  time  of  acquittal  is  not  essential  to  the  charge, 

1  2  Russell  on  Crimes,  711 ;  1  East,  P.  »  Ibid.  ;  2  Stark.  Ev.  394. 

C  841.  *  Sloplieii  on  Plead i n t,^  809  ;  1   Cliitty 

•■i  Hull.  N.   P.   301;    Co.   Lit.  281,  B.  on  PI.  L'Cl, '2152,  348  (Cth  ed.) ;  Stukeley  !\ 

Whether  virtnic  rnjns,  in  a  sherifF's  plea  in  Putler,  Hoi).  1G8,  172  ;  2  Saund.  2Ul,  note 

justification,  is  tra versa) )le,  and  in  what  (1);  Gleason  v.  McVickai*,  7  Cowen,  42. 
cases,  is  discussed  in  Lucas  v.  Nockells,  7 
Bligh,  N.  8.  140. 


CHAP.  II.] 


THE   SUBSTANCE   OF   THE  ISSUE. 


73 


and  need  not  be  proved,  though  it  be  directly  and  expressly 
alleged.^  But  where,  in  an  action  for  breach  of  warranty  upon 
the  sale  of  personal  chattels,  the  plaintiff  set  forth  the  price  paid 
for  the  goods,  without  a  videlicet,  he  was  held  bound  to  prove  the 
exact  sum  alleged,  it  being  rendered  material  by  the  form  of 
allegation; 2  though,  had  the  averment  been,  that  the  sale  was  for 
a  valuable  consideration,  to  2vit^  for  so  much,  it  would  have  been 
otherwise.  A  videlicet  will  not  avoid  a  variance,  or  dispense  with 
exact  proof,  in  an  allegation  of  material  matter ;  nor  will  the 
omission  of  it  always  create  the  necessity  of  proving,  precisely  as 
stated,  matter  Vhicli  would  not  otherwise  require  exact  proof. 
But  a  party  may,  in  certain  cases,  im[)ose  upon  hinisclf  the 
necessity  of  proving  precisely  what  is  stated,  if  not  stated  under 
a  videlicet.^ 

§  Gl.  But,  in  general,  the  allegations  of  time,  place,  quantity, 
quality,  and  value,  when  not  descriptive  of  the  identity  of  the  sub- 
ject of  the  action,  will  be  found  immaterial,  and  need  not  be 
proved  strictly  .as  alleged.  Thus,  in  trespass  to  the  person,  the 
material  fact  is  the  assault  and  battery  ;  the  time  and  place  not 
being  material,  unless  made  so  by  the  nature  of  the  justification, 
and  the  manner  of  pleading.     And,  in  an  action  on  a  policy  of 


1  Supra,  §  56  ;  Purcell  v.  Macnamara, 
9  East,  160;  Gwinnett  v.  PiuUips,  3  T.  R. 
643  ;  Vail  v.  Lewis,  4  Johns.  450. 

-  Durston  o.  Tuthan,  cited  in  8  T.  R. 
67 ;  Synnnons  i\  Knox,  8  T.  R.  65 ;  Am- 
field  V.  Bates,  3  M.  &  S.  173;  Sir  Francis 
Lelvc's  case,  Hyer,  364  /) ;  Steplien  on 
Pleading,  419,  420 ;  1  Chitty  on  Pi.  340 
(6tli  ed). 

'^  Cri.spin  v.  Williamson,  8  Taunt.  107, 
112;  Attorney-Gen.  e;.  Jeffreys,  M'Cl.  R. 
277 ;  2  B.  &  C.  3,  4 ;  1  Chitty  on  Plead. 
348  a  ;  Grimwood  v.  Barrett,  6  T.  U.  460, 
463;  Bristow  v.  Wriglit,  Doug.  6t)7,  668. 
These  terms,  "  immaterial,"  and  "  imper- 
tinent," though  formerly  applied  to  two 
classes  of  averments,  are  now  treated  as 
synonymous;  3  1).  &  R.  209;  the  more 
accurate  distinction  being  between  these, 
and  iiiincmssari/  allegations.  Immaterial  or 
impertinent  averments  are  tliose  which 
need  neither  be  alleged  nor  proved  if  al- 
leged. Unnecessary'  averments  consist  of 
mattei-s  which  need  not  be  alleged ;  but, 
being  alleged,  must  be  proved.  Tlius,  in 
an  action  of  assumpsit  upon  a  warranty 
on  the  sale  of  goods,  an  allegation  of  de- 
ceit on  tiie  part  of  the  seller  is  imperti- 
nent, and  need  not  be  proved.  Wil- 
liamson   V.  Allison,   2    East,   416;    Pan- 

VOL.   I.  7 


,'^r 
^ 


ton  i\  Holland,  17  Johns.   92 ;    T-wiss  v. 
Baldwin,  9  Conn.  292.     So,  wliere  the  ac- 
tion was  for  an  injury  to  the  plaintift''s  re 
versionary  interest  in    land,  and  it   was 
alleged,  that  the  close  at  the  time  of  the 
injury,  was,  and  "  continually  fiom  thence 
hitherto   hath  been,  and  still  is,"  in  the 
possession  of  one  J.  V.,  tlds  latter  part  of 
the  averment  Tvas  held   superfluous,  and 
not  necessary  to  be   proved.     Vowels  v.  * 
Miller,  3  Taunt.  137.     But  if,  in  an  action 
by  a  lessor  against  his  tenant,  for  negli- 
gently kec'])ing  liis  fire,  a  demise  for  serim  ;#s 
yeiirs  l)e  alleged,  and  the  pmof  be  of  a  lease  I    \ 
at  will  only,  it  will  he  a  fatal  variance  ;  for  ;     *i 
though  it  would  have  sufticed  to  have  al-.       \ 
leged   the  tenancy  generally,  yet  having 
uimecessariiy  qualified  it,  by  stating  the 
precise  term,  it  must  be   proved  as  laid. ' 
Cudlip    V.    Bundle,  Carth.    202.     So,    in 
debt  against  an  officer  for  extorting  ille- 
gal fees  on  a  Jiiri  facias,  though  it  is  suf- 
ficient to  allege  the  issuing  of  the  writ  of 
Jieri  facias,  yet  if  the  plaintiff  also   un- 
necessarily allege  the  judgment  on  which 
it  was  founded,  he  must  prove  it,  having 
nuide  it  descriptive  of  the  princiiial  thing. 
Savage  v.  Smith,  2  W.  Bl.  1101  ;  Bristow 
V.  Wright,  Doug.  668;  (iould's  PI.  160- 
165  ;  Draper  v.  Gairatt,  2  B.  &  C.  2. 


7-4  LAW   OF   EVIDENCE.  [PART   II. 

liiisurance,  the  material  allegation  is  the  loss;  but  whether  total 
or  partial  is  not  material;  and  if  the  former  be  alleged,  proof  of 
I  the  latter  is  sufficient.  So  in  assumpsit,  an  allegation,  that  a  bill 
of  exchange  was  made  on  a  certain  day,  is  not  descriptive,  and 
therefore  strict  proof,  according  to  the  precise  day  laid,  is  not 
necessary ;  though,  if  it  were  stated,  that  the  bill  lore  date  on  that 
day,  it  would  be  otherwise.^  Thus,  also,  proof  of  cutting  the  pre- 
cise number  of  trees  alleged  to  have  been  cut,  in  trespass ;  or,  of 
the  exact  amount  of  rent  alleged  to  be  in  arrear  in  replevin ;  or 
the  precise  value  of  the  goods  taken,  in  trespass  or  trover,  is  not 
necessary .2  Neither  is  matter  of  aggravation,  namely,  that  which 
only  tends  to  increase  the  damages,  and  does  not  concern  the 
right  of  action  itself,  of  the  substance  of  the  issue.  But,  if  the 
matter,  alleged  by  way  of  aggravation,  is  essential  to  the  support 
of  the  charge  or  claim,  it  must  be  proved  as  laid. 

§  62.  But  in  local  actions  the  allegation  of  place  is  material  and 
must  strictly  be  proved,  if  put  in  issue.  In  real  actions,  also,  the 
statement  of  quality,  as  arable  or  pasture  land,  is  generally 
descriptive,  if  not  controlled  by  some  other  and  more  specific 
designation.  And  in  these  actions,  as  well  as  in  those  for  injuries 
to  real  property,  the  abuttals  of  the  close  in  question  must  be 
proved  as  laid ;  for  if  one  may  be  rejected,  all  may  be  equally 
disregarded,  and  the  identity  of  the  subject  be  lost.^ 

§  03.  It  being  necessary  to  prove  the  substance  of  the  issue,  it 
follows,  that  any  departure  from  the  substance,  in  the  evidence 
adduced,  must  be  fatal ;  constituting  what  is  termed  in  the  law 
a  variance.  This  may  be  defined  to  be  a  disagreement  between 
the  allegation  and  the  proof,  in  some  matter,  which,  in  point  of  laWj 
is  essential  to  the  charge  or  claim.'^  It  is  the  legal,  and  not  the 
natural  identity,  which  is  regarded  ;  consisting  of  those  particulars 
only,  which  are  in  their  nature  essential  to  the  action,  or  to  the 
justification,  or  have  become  so  by  being  inseparably  connected,  by 
the  mode  of  statement,  with  that  which  is  essential ;  of  which  an 
example  has  already  been  given,^  in  the  allegation  of  an  estate  in  • 
fee,  when  a  general  averment  of  freehold  would  suffice.     It  is 


1  Gardiner  v.  Crnadalos,  2  Burr.  904 ;  2  East,  497;  502  ;  Bull.  N.  P.  89  ;  Vowels 

Coxon  V.  Lyon,  2  Cam])!).  oOT,  n.  v.  Miller,  3  Taunt.  l:>9,  per  Lawrence,  J.  ; 

'^  Harrison  ('.  Barnbv,  5  T.  R.  248  ;  Co.  Begina  v.  Cranage,  1   Salk.    385.      [See 

Lit.    282  a;    Ste])hen  "on  Pleading,  318;  post,  vol.  2,  §  018  a.] 

Hutchins  r.  Adams,  3  Greenleaf,  174.  *  Steplien  on  PI.  107,  108. 

8  Mersey  &  L-well  Nav.  Co.  v.  Douglas,  ^  Supra,  §  51-56. 


CHAP.  II.]  THE  SUBSTAN'CE  OF  THE  ISSUE.  75 

necessary,  therefore,  in  these  cases,  first  to  ascertain  what  are  the 
essential  elements  of  the  legal  proposition  in  controversy,  taking 
care  to  include  all,  Avhich  is  indispensable  to  show  the  riglit  of  the 
plaintiff,  or  party  aflirining.  The  rule  is,  that  whatever  cannot 
be  stricken  out  without  getting  rid  of  a  part  essential  to  the  cause 
of  action,  must  be  retained,  and  of  course  must  be  proved,  even 
itliough  it  be  described  with  unnecessary  particularity.^  The  de- 
fendant is  entitled  to  the  benefit  of  this  rule,  to  protect  himself  V^ 
by  the  verdict  and  judgment,  if  the  same  rights  should  come  again 
fin  controversy.  The  rule,  as  before  remarked,  does  not  generally 
apply  to  allegations  of  number,  magnitude,  quantity,  value,  time, 
Sums  of  money,  and  the  like,  provided  the  proof  in  regard  to  these 
is  sufficient  to  constitute  the  offence  charged,  or  to  substantiate 
the  claim  set  up ;  except  in  those  cases  where  they  operate  by  way 
of  limitation,  or  description  of  other  matters,  in  themselves 
essential  to  the  offence  or  claim.^ 

§  64.  A  few  examples  will  suffice  to  illustrate  this  subject. 
Thus,  in  tort,  for  removing  earth  from  the  defendant's  land, 
whereby  the  foundation  of  the  plaintiff's  house  was  injured,  the 
allegation  of  bad  intent  in  the  defendant  is  not  necessary  to  be 
proved,  for  the  cause  of  action  is  perfect,  independent  of  the 
intention.3  So,  in  trespass,  for  driving  against  the  plaintiff's 
cart,  the  allegation,  that  he  was  in  the  cart,  need  not  be  proved.* 
But,  if  the  allegation  contains  matter  of  description,  and  is  not 
proved  as  laid,  it  is  a  variance,  and  is  fatal.     Thus,  in  an  action 


1  Bristow  V.  Wright,  Douff.  668  ;  Pep-  charge  for  perjury,  where  the  plaintiff  al- 

piii  r.  Solomons,  5  T.  R.  4'.tt3 ;  William-  Icged,  by  way  of  inducement,  that  lie  was 

son  V.  Allison,  2  East,  446,  4-32.  sworn  before  the  Lord  Mayor.    Stephen  on 

-  Supra,  §  61  ;  Rickets  v.  Salwey,  2  B.  Pleading,  258.     The  (jucstion  whether  an 

&  Aid.  863;  Maj' r.  Brown,  3  B.  &.  C.  113,  allegation  must  be  pruvetl,  or  not,  turns 

122.     It   has  been  said,  that   allegations,  upon  its  materiality  to  the  case,  and  not  up- 

which  are  merely  matters  of  inducement,  do  on  the  form  in  which  it  is  stated,  or  its  place 

not    require    such   strict  proof,  as  those  in  the  declaratitm.    In  general,  every  alle- 

which  are  precisely  put  in  issue  between  gation  in  an  inducement,  which  is  materi- 

the  parties.    Smith  r.  Taylor,  1  New  Rep.  al.  and  not  imjiertinent,  and  foreign  to  the 

210,  per  Chambre,  J.     But  this  distinction  case,  and  which  conseijucntly  cannot   be 

as   Mr.  Starkie  justly  observes,  between  rejected  as  surplusage,  must  be  jiroved  as 

that  which  is  tlie  gist  of  the   action,  and  alleged.     1  Chitty  on  PI.  262,  320.     It  is 

that  which  is  inducement,  is  not  always  true  that  those  matters  which  need  not 

clear  in  principle.      1  Stark.  Evid.    3"Jl,  bo  alleged  with  particularity,  need  not  be 

note  (b);    3  Stark.  Evid.   1551,  note  (x)  proved    with    i)articularity,    but    still,    all 

Metcalf 's  ed.     Certainly  that  which  may  allegations,  if  material,  must   be  proved 

be  traversed,  must  be  proved,  if  it  is  not  substantially  as  aila/ed. 

admitted;  and   some   facts,  even  though  ^  Panton   v.    Holland,    17   Johns.   92; 

stated  in  the  form  of  inducement,  may  i)e  Twiss  v.  Baldwin,  9  Conn.  291. 

traversed,  because  they  are  material ;  as,  *  Howard  v.  Peete,  Chitty  R.  315. 
for  example,  in  action  for  slander,  upon  u 


76  LAW   OF   EVIDENCE.  [PART   II. 

for  malicious  prosecution  of  the  plaintiff,  upon  a  charge  of  felony, 
before  Baron  Waterpark  of  Waterfork^  proof  of  such  a  prosecution 
before  Baron  Waterpark  of  Waterpark  was  held  to  be  fatally 
variant  from  the  declaration.^  So,  in  an  action  of  tort  founded 
on  a  contract,  every  particular  of  the  contract  is  descriptive,  and 
a  variance  in  the  proof  is  fatal.  As,  in  an  action  on  the  case  for 
deceit,  in  a  contract  of  sale,  made  by  the  two  defendants,  proof 
of  a  sale  by  one  of  them  only,  as  his  separate  property,  was  held 
insufficient;  for  the  joint  contract  of  sale  was  the  foundation  of 
the  joint  warranty  "laid  in  the  declaration,  and  essential  to  its 
legal  existence  and  validity .^ 

§  Qb.  In  criminal  prosecutions,  it  has  been  thought  that  greater 
strictness  of  proof  was  required  than  in  civil  cases,  and  that  the 
defendant  might  l)e  allowed  to  take  advantage  of  nicer  exceptions.^ 
But  whatever  indulgence  the  humanity  and  tenderness  of  judges 
may  have  allowed  in  practice,  in  favor  of  life  or  liberty,  the  better 
opinion  seems  to  be,  that  the  rules  of  evidence  are  in  both  cases 
the  same.*  If  the  averment  is  divisible,  and  enough  is  proved  to 
constitute  the  offence  charged,  it  is  no  variance,  though  the  re- 
maining allegation?  are  not  proved.  Thus,  an  indictment  for 
embezzling  two  bank-notes  of  equal  value  is  supported  by  proof 
of  the  embezzlement  of  one  only.^  And  in  an  indictment  for 
obtaining  money  upon  several  false  pretences,  it  is  sufficient  to 
prove  any  material  portion  of  them.^  But  where  a  person  or 
thing,  necessary  to  be  mentioned  in  an  indictment,  is  described 
with  unnecessary  particularity,  all  the  circumstances  of  the  de- 
scription must  be  proved ;  for  they  are  all  made  essential  to  the 
identity.  Thus,  in  an  indictment  for  stealing  a  black  horse,  the 
animal  is  necessarily  mentioned,  but  the  color  need  not  be  stated ; 
yet  if  it  is  stated,  it  is  made  descriptive  of  the  particular  animal 
stolen,  and  a  variance  in  the  proof  of  the  color  is  fatal. ^  So.  in 
an  indictment  for  stealing  a  bank-note,  though  it  would  be  suffi- 
cient to  describe  it  generally  as  a  bank-note  of  such  a  denomination 

1  Walters  v.  Mace,  2  B.  &  Aid.  756.  Abbott,  J. ;  Lord  INIelville's  case,  29  How- 

2  Weall  V.  Kinjr,  et  „/.  12  E.ist,  452 ;  ell's  St.  Tr.  STO  ;  2  Russell  on  Crimes, 
Lopes  r.  De  Tastet,  1  B.  &  B.  5;-!8.  [See  688 ;  United  States  v.  Britton,  2  Mason, 
Ashley  r.  Wolcott,  1 1  rn.sh.  192.]  464,  468. 

"Beech's   case.  1   Loach's    Cas.    158;  ^  Carson's  case,  TJuss.  &  Ry.  303  ;  Fiir- 

►United  States  i;.  I'oiter,  8  Day,  283,  286.  neaiix's  case,  Id.   335;    Tyer's   case,   Id. 

*  Boscoe's  Ciini.  Kvid.  73 ;  1  Deacon's  402. 

Pig.  Crim.    L  nv,  459,  460.     And   see   2  «  Hill's  case.  Buss.  &  Ry.  190. 

East,  P.  C.  78'),  1021  ;  1  Phil.  Evid.  506 ;  T  1  Stark.  Evid.  374. 
Rex  V.  Watson,  2  Stark.  R.  116,  155,  per 


CHAP.  II.]  THE   SUBSTANCE   OF   THE   ISSUE.  77 

or  value,  yet,  if  the  name  of  the  officer  who  signed  it  be  also 
stated,  it  must  be  strictly  proved. ^  So,  also,  in  au  indictment  for 
murder,  malicious  shooting,  or  other  offence  to  the  person,  or 
for  an  offence  against  the  habitation,  or  goods,  the  name  of  the 
person  who  was  the  subject  of  the  crime,  and  of  the  owner  of 
the  house  or  goods,  are  material  to  be  proved  as  alleged.^  But 
where  the  time,  place,  person,  or  other  circumstances  are  not 
descrii)tive  of  the  fact  or  degree  of  the  crime,  nor  material  to  the 
jurisdiction,  a  discrepancy  between  the  allegation  and  tlie  proof 
is  not  a  variance.  Such  are  statements  of  the  house  or  field, 
where  a  robbery  was  committed,  the  time  of  the  day,  the  day  of 
the  term  in  which  a  false  answer  in  chancery  was  filed,  and  the 
like.^  In  an  indictment  for  murder,  the  suljstance  of  the  charge 
is,  that  the  prisoner  feloniously  killed  the  deceased  by  means  of 
shooting,  poisoning,  cutting',  blows  or  bruises,  or  the  like ;  it  is, 
therefore,  sufficient,  if  the  proof  agree  with  the  allegation  in  its 
substance  and  general  character  without  precise  conformity  in 
every  particular.  In  other  Avords,  an  indictment  describing  a 
thing  by  its  generic  term  is  supported  by  proof  of  a  species  which 
is  clearly  comprehended  within  such  description.  Thus,  if  the 
charge  be  of  poisoning  by  a  certain  drug,  and  the  proof  be  of 
poisoning  by  another  drug ;  or  the  charge  be  of  felonious  assault 
with  a  staff,  and  the  proof  be  of  such  assault  with  a  stone ;  or  the 
charge  be  of  a  wound  with  a  sword,  and  the  proof  be  of  a  wound 
with  an  axe  ;  yet  the  charge  is  substantially  proved,  and  there  is 
no  variance.*     But  where  the  matter,  whether  introductory  or 

1  Craven's  case,  Russ.  &  l\y.  14.     So,  dieted  for  an  assault  upon  A.  B.,  a  depnty- 

wliere  the  charge  in  an  indictnient  was  of  sheriff,  and  in  the  officer's  coniiuission  lie 

stealing   70    pieces   of   the   current   coin  is  styled  A.  B.  junior,  it  is  no  variance  if 

called  "sovereigns,   and  140  pieces  called  the  'pefso"   is    proved   to   be   the   same, 

half   sovereigns,  and    500    pieces    called  ConnnouwealtU  t:  Beckley,  3  JNletcalf,  K. 

crowns ;  it  was  held,  that  it  was  not  sup-  830. 

ported  by  evidence  of  stealing  a  sum  of  '^  Wardle's  case,  2  East,   P.    C.    78-5; 

Mowi/   consisting  of   some   of   the   coins  Pye's  case,  lb.  ;  .Johnstone's  case.  Id.  780  ; 

mentioned    in    the    indictment,    without  Minton's  case,  Id.  1021 ;  Kex  r.  "Waller.  2 

proof  of  some  one  or  more  of  the  specific  Stark.  Evid.  Olio ;  Kex  v.  Ilucks,  1  Stark, 

coins  charged  to  have  been  stolen.     l\egi-  K.  521. 

na  V.  Bond,  1  Den.  Cr.  Cas.  R.  517;  14  *  1  East,  P.  C.  341;  Martin's  case,  5 

Jur.  390.  Car.  &  P.  128;    Culkin's   case.  Id.    121; 

-  Clark's    case,    Russ.    &    Ry.    358;  supra,  %o8.   An  indictnient  for  stealing  "  a 

White's  case,  1  Leach's  Cas.  28G;'Jenks's  sheep"   is    supported    by    proof  of  the 

case,  2  East,  P.  C.  514 ;  Durore's  case,  1  stealing  of  any  sex  or  variety  of  that  ani- 

Leach's  Cas.  390.     But  a  mistake  in  spel-  mal ;  for  the  term  is  nomfii  (puenilissiminn. 

hng  the  name  is  no  variance,  if  it  be  ickiii  IM'Cully's  case,  2  Lew.  C.  C.  272 ;  Kcgi- 

soiians  with  the  name  proved.    'Williams  v.  na  v.  Spicer,  1  Dennis,  C.  C.  82.     So,  if 

Ogle,  2  Stra.  889 ;  Poster's  case.  Buss.   &  the  charge  be  of  death  by  suffocation,  by 

Ry.  412 :  Tannet's  case,  Id.  351 ;  Bingham  the  hand  over  the  mouth,  and  the  i)roof  be 

v.* Dickie,  5  Taunt.  814.     So,  if  one  be  in-  that  respiration  was   stopped,  though  by 


78  LAW   OF   EVIDENCE.  [PART   II. 

Otherwise,  is  descriptive,  it  must  l)G  proved,  as  laid,  or  tlie  variance 
will  be  fatal.  As,  in  an  indictment  for  perjury  in  open  court,  the 
term  of  the  court  must  be  truly  stated  and  strictly  proved.^  So, 
in  an  indictment  for  perjury  before  a  select  committee  of  the 
House  of  Commons,  in  a  contested  election,  it  was  stated  that  an 
election  was  holden  by  virtue  of  a  precept  duly  issued  to  the 
bailiff  of  the  borough  of  New  Malton,  and  that  A  and  B  were 
returned  to  serve  as  members  for  the  said  borough  of  New  Malton  ; 
but  the  writ  appeared  to  be  directed  to  the  bailiff  of  Malton. 
Lord  Ellenborough  held  this  not  matter  of  description ;  and  the 
precept  having  been  actually  issued  to  the  bailiff  of  the  borough 
of  New  Malton,  it  was  sufficient.  But  the  return  itself  was  deemed 
descriptive  ;  and  the  proof  being  that  the  members  were  in  fact 
returned  as  members  of  the  borough  of  Malton,  it  was  adjudged 
a  fatal  variance.^  So,  a  written  contract,  when  set  out  in  an 
indictment,  must  be  strictly  proved.^ 

§  6(3.  Thus,  also,  in  actions  upon  contract,  if  any  part  of  the 
contract  proved  should  vary  materially  from  that  which  is  stated 
in  the  pleadings,  it  will  be  fatal ;  for  a  contract  is  an  entire  thing, 
and  indivisible.  It  will  not  be  necessary  to  state  all  the  parts  of 
a  contract,  which  consists  of  several  distinct  and  collateral  pro- 
visions ;  the  ciravamen  is,  that  a  certain  act,  which  the  defendant 
engaged  to  do,  has  not  been  done  ;  and  the  legal  proposition  to 
be  maintained  is,  that,  for  such  a  consideration,  he  became  bound 
to  do  such  an  act,  including  the  time,  manner,  and  other  circum- 
stances of  its  performance.  The  entire  consideration  must  be 
stated,  and  the  entire  act  to  be  done,  in  virtue  of  such  considera- 
tion, together  with  the  time,  manner,  and  circumstances;  and 
with  all  the  parts  of  the  proposition,  as  tluis  stated,  the  proof 
must  agree.*  If  the  allegation  be  of  an  absolute  contract,  and  the 
proof  be  of  a  contract  in  the  alternative,  at  the  option  of  the  de- 
fendant ;  or  a  promise  be  stated  to  deliver  merchantable  goods, 
and  the  proof  be  of  a  promise  to  deliver  goods  of  a  second  quality  ; 

some  other  violent  mode  of  strangulation,  "2   East,  P.  C.   977,   078,    081,    082; 

it  is  siiflicii'iit.     Hex  v.  Waters,  7  C.  ife  l*.  Commonwealth    v.    Parmenter,    5    I'ick. 

2o()     [Commonwealth  17.  Webster,  5  Cush.  270;  The   I'eople   v.   Pranklin,  3  Johns. 

321,  32:51.  209. 

1  Where  the  term  is  designated  by  the  *  Clarke  v.  Gray,  6  East,  564,  567,  568  ; 

day  of  the  month,  as  in  the  Circuit  Courts  Gwinnett  v.   Phillips,  3  T.  K.  043,  640  ; 

of  the  United  States,  the  precise   day  rs  Thornton  v.  Jones,  2  Marsh.  287 ;  Parker 

material.      United    States   v.   McNeal,  1  v.   Palmer,  4  B.  &  A.  387 ;    Swallow    v. 

Call.  ;!87.  Beaumont,  2  B.  &  A.  705. 

-  liex  V.  Leefe,  2  Campb.  134,  140. 


CHAP.  II.]  THE   SUBSTANCE   OF   THE   ISSUE.  79 

or  the  contract  stated  be  to  pay  or  perform  in  a  rcasonaLlc  time, 
and  the  proof  be  to  pay  or  perform  on  a  day  certain,  or  on  the 
happening  of  a  certain  event ;  or  the  consideration  stated  be  one 
horse,  bought  by  the  plaintiff  of  the  defendant,  and  the  proof  be 
of  two  horses ;  in  these  and  the  like  cases,  the  variance  will  be 

fatal.i 

§  67.  There  is,  however,  a  material  distinction  to  be  observed 
between  the  redundancy  in  the  allegation,  and  redundancy  only 
in  the  froof.  In  the  former  case,  a  variance  between  the  allega- 
tions and  the  proof  will  be  fatal,  if  the  redundant  allegations  are 
descriptive  of  that  which  is  essential.  But  in  the  latter  case, 
redundancy  cannot  vitiate,  merely  because  more  is  proved  than 
is  alleged  ;  unless  the  matter  superfluously  proved  goes  to  con- 
tradict some  essential  part  of  the  allegation.  Tluis,  if  the  allega- 
tion were,  that  in  consideration  of  £100,  the  defendant  promised 
to  go  to  Rome,  and  also  to  deliver  a  certain  horse  to  the  plaintiff, 
and  the  plaintiff  should  fail  in  proving  the  latter  branch  of  the 
promise,  the  variance  would  be  fatal,  though  he  sought  to  recover 
for  the  breach  of  the  former  only,  and  tlic  latter  allegation  was 
unnecessary.  But,  if  he  had  alleged  only  the  former  branch*  of 
the  promise,  the  proof  of  the  latter  along  with  it  would  be  imma- 
terial.    In  the  first  case,  he  described  an  undertaking  which  he 

1  Penny  v.  Porter,  2  East,  2;  Bristow  is  not  supported  by  proof  of  a  note  paya- 
V.  Wright,  2  Doug.  665 ;  Hilt  v.  Campbell,  ble  "  without  defalcation."  Addis  r.  \a\\ 
6  Greenl.  109;  Symonds  v.  Carr,  1  Campb.  Buskirk,  4  Zabr.  218.  Where  a  note  was 
361 ;  King  r.  Robinson,  Cro.  El.  79.  See  described  in  the  declaration  as  payable 
pas-/,  vol.  2,  §  11  d.  [Where  the  decla-  "on  or  before"  a  certain  day,  and  the 
ration  set  fortli  an  executory  agreement  proof  was  that  it  was  payable  "  on  "  the 
of  the  defendant  to  do  certain  work  for  a  day  named,  it  was  held  no  variance.  Mor- 
certain  sum,  and  within  a  certain  time,  on  ton  v.  Penny,  16  111.  494;  see  also  Walker 
materials  to  be  furnished  by  tlie  plaintiff,  v.  Welch,  14  111.  277.  The  declaration 
and  alleged  that  the  plaintiff  did  furnish  wasonajiromiseto  paymoncy  on  demand  ; 
the  materials  to  the  defendant  in  season  the  proof  was  a  promise  to  pay  incom- 
for  him  to  complete  the  stipidated  work  modities  ;  and  it  was  held  to  be  a  variance. 
witliin  the  stii)tdat('d  time,  and  the  proof  Titus  r.  Ash,  4  Foster,  X.  II.  819.  So  a 
was  that  tiie  ])laiiititf  had  not  performed  declaration  on  a  note  not  alleged  to  lie 
in  full  his  agreement,  but  that  he  was  ex-  upon  interest  is  not  sustained  by  proof  of 
cuseil  from  the  ]ierformance  thereof  by  the  a  note  in  other  respects  similar,  but  draw- 
waiver  of  the  defendant ;  the  variance  wjia  ing  interest.  Gragg  v.  Erye,  32  Maine, 
held  fatal.  Colt  v.  Miller,  10  Cush.  49,51;  283.  There  can  be  no  doubt  of  the  ad- 
see  also  Metzner  i\  Bolton,  24  Eng.  Law  &  missibility  of  a  written  contract  in  evi- 
Eq.  537.  And  where  the  declaration  al-  deuce  to  prove  the  contract  declared  on, 
leged  an  authority  to  one  G.  W.,  trading  though  the  declaration  does  not  aver  that 
as  G.  W.  &  Co.,  to  sell  goods  as  the  goods  it  was  in  writing.  It  is  generally  umieces- 
of  G.  W.,  and  tiie  proof  was  of  an  authority  sary  in  declaring  on  a  simple  contract  in 
to  G.  W.  to  sell  the  goods  as  the  goiids  of  writing  to  allege  it  to  be  so.  This  allega- 
G.  W.  &  Co.,  the  variance  was  held  fatal,  tion  is  not  re(iuired  even  in  declarations 
Addington  v.  Magan,  2  Eng.  Law  &  Eq.  on  contracts  that  are  within  the  statute 
327.  A  declaration  setting  out  a  note  of  frauds.  Eiedlcr  i\  Smith,  6  Cush.  340; 
payable  "  without  defalcation  or  discount  "  see  Irvine  v.  Stone,  lb.  508.] 


80  LAW   OF   EVIDENXE.  [PART  II. 

has  not  proved ;  but  in  the  latter,  he  has  merely  alleged  one 
promise,  and  proved  that,  and  also  another.^ 

§  6cS.  But  where  the  sulyect  is  entire,  as,  for  example,  the  con- 
sideration  of  a  eontraet,^  a  variance  in  the  proof,  as  we  have  just 
seen,  shows  the  allegation  to  be  defective,  and  is,  therefore, 
material.  Thus,  if  it  Avere  alleged,  that  the  defendant  promised 
to  pay  XlOO,  in  consideration  of  the  plaintiff's  going  to  Home, 
and  also  delivering  a  horse  to  the  defendant,  an  omission  to 
prove  the  whole  consideration  alleged  would  be  fatal.  And  if  the 
cousijleration  had  been  alleged  to  consist  of  the  going  to  Rome 
only,  yet  if  the  agreement  to  deliver  the  horse  were  also  proved, 
as  forming  part  of  the  consideration,  it  would  be  equally  fatal ; 
the  entire  tiling  alleged,  and  the  entire  thing  proved,  not  being 
identical.^  Upon  the  same  principle,  if  the  consideration  alleged 
Ijc  a  contract  of  the  plaintiff  to  huild  a  ship,  and  the  proof  be  of 
one  to  finish  a  ship  partly  built ;  *  or  the  consideration  alleged  he 
the  delivery  of  j^iMe  timber,  and  the  proof  be  of  spruce  timber ;  ^ 
OF  the  consideration  alleged  be,  that  the  plaintiff  would  indorse 
a  note,  and  the  proof  be  of  a  promise  in  consideration  that  he  had 
inclorsed  a  note ;  ^  the  variance  is  equally  fatal.  But  thougli  no 
part  of  a  valid  consideration  may  be  safely  omitted,  yet  that  which 
is  merely  frivolous  need  not  be  stated ; "'  and,  if  statfidr-tteedTlot 
be  proved ;  for  the  court  will  give  the  sanj.&-t;Snstruction  to  the 
declaration,  as  to  the  contract  itself,  rejecting  that  which  is  non- 
sensical or  repugnant.^ 

§  09.  In  the  case   of  deeds,  the  same   general   principles   are 

1  Stark.  Evid.  401.     Where  the  agree-         ^  Robbins  v.  Otis,  1  Pick.  3G8. 
ment,  as  in  this  case,  contains  several  dis-  ^  Bulkley  v.  Landon,  'I  Cunn.  404.     [So 

tinct  promises,  and  for  the  breach  of  one  if  tiie  allegation  be  of  an  agreement  to 

only  the   action   is    bronght,   the  conse-  obtain  insurance  on  property,  "  in  consid- 

quences  of  a  variance  may  be  avoided  by  eration  of  a  rcasotnibk  commission,"  and  the 

alleging  the  promise,  as  made  inter  alia,  proof  be  of  an  agreement  to  obtain  the  in- 

And  no  good  reason,  in  principle,  is  per-  snrancc  in  consideration  of  a  dr/initc  sum, 

ceived,  why  the    case  mentioned  in  the  the  variance  is  fatal.     Cleaves  r.  Lord,  3 

following  section  might  not  be  treated  in  Gray,  (JG,  71.     And  where  the  declaratioH 

a  similar  manner  ;  but  the  authorities  are  alleged  that  the  defendant,  "  in  considcra- 

otlierwise.     In  the  example  given  in  the  ti.on  that  said,  &c.,  had  accepted  the  as- 

te.xt,  tiic  allegation  is  supposed  to  import  sigmnentof  a  certain  policy,  &c.,"  and  the 

that  the  undertaking  consisted  of  neither  proof  was  that  "  the  policy  having  been 

more  nor  less  than  is  alleged.  assigned  to  us,  in  consideration  thereof, 

'■^  Swallow  r.    Beaumont,    2  B.   &  A.  we  promise,  &c.,"  it  was  held  that  there 

765  ;  White  v.  Wilson,  2  B.  &  P.  116 ;  su-  was  a  variance.     New  Hampshire  Mutual, 

pra,  §  58.  &c.,  Ins.  Co.  v.  Hunt,  10  Foster,  21'.l.] 

''  1  Stark.  Evid.  401 ;  Lansing  v.  Mc-         "  Brooks  v.  Lowrie,  1  Nott  &  McCord, 

Killip,  :'  Caines,  286 ;  Stone  v.  Knowlton,  342. 
3  \Vend.  ;;74.  *  Ferguson  v.  Ilarwood,  8  Cranch,  408, 

•»  Smith  1-.  Barter,  3  Day,  312.  414. 


CHAP.  II.]  THE   SUBSTANCE   OF   THE   ISSUE.  81 

applied.  If  the  deed  is  declared  upon,  every  part  stated  in  the 
pleadings,  as  descriptive  of  the  deed,  nuist  Ije  exactly  ])rovcd,  or  it 
will  be  a  variance ;  and  this,  whether  the  parts  set  out  at  length 
were  necessary  to  be  stated  or  not.^  If  a  qualified  covenant  be 
set  out  in  the  declaration  as  a  general  covenant,  omitting  the 
exception  or  limitation,  the  variance  between  the  allegation  and 
the  deed  will  be  fatal.  If  the  condition,  proviso,  or  limitation 
affects  the  original  cause  of  action  itself,  it  constitutes  an  essential 
element  in  the  original  proposition  to  be  maintained  by  the  plain- 
tiff; and,  therefore,  must  be  stated,  and  proved  as  laid ;  but,  if  it 
merely  affects  the  amount  of  damages  to  be  recovered,  or  the 
liability  of  the  defendant  as  affected  by  circumstances  occurring 
after  the  cause  of  action,  it  need  not  be  alleged  by  the  plaintiff, 
but  properly  comes  out  in  the  defence.^  And  where  the  deed  is 
not  described  according  to  its  tenor,  but  according  to  its  legal 
effect,  if  the  deed  agrees  in  legal  eifect  with  the  allegation,  any 
verbal  discrepancy  is  not  a  variance.  As,  in  covenant  against  a 
tenant  for  not  repairing,  the  lease  being  stated  to  have  been  made 
by  the  plaintiff,  and  the  proof  being  of  a  lease  by  the  plaintiff  and 
his  wife,  she  having  but  a  chattel  interest ;  or,  if  debt  be  l>rouglit 
by  the  husband  alone,  on  a  bond  as  given  to  himself,  the  bond 
appearing  to  have  been  given  to  the  husband  and  wife ;  yet,  the 
evidence  is  sufficient  proof  of  the  allegation.^     But,  wdiere  the  deed 

1  Bowditch  V.  Mawley,  2  Campb.  195 ;  deed,  or  the  like,  livery  bein^  made  in  the 
Dundas  v.  Ld.  Weymouth,  Cowj).  665;  one  case,  and  possession  delivered  in  the 
supra,  §  55;  Ferguson  v.  Harwood,  7  otlier,  the  transfer  of  title  is  perfect,  not- 
Cranch,  408,  -llo ;  Sheehy  v.  Mandeville,  withstanding  any  mistake  in  the  name  of 
Id.  208,  217.  the  grantor  ;  for  it  takes  etiect  bv  dehvery, 

2  1  Chitty,  ri.  268,  269  (5th  Am.  ed.)  ;  and  not  by  the  deed.  I'erk.  sec.  88-42. 
Howell  V.  Kichards,  11  East,  633 ;  Clarke  But  where  the  etiicacy  of  the  transaction 
V.  Gray,  6  East,  564,  570.  depends  on  the  instrument  itself,  as  in  the 

^  Beaver  v.  Lane,  2  Mod.  217  ;  Arnold  case  of  a  bond  l()r  the  payment  of  money, 

V.  Ilivovdt,  1  Br.  &  B.  442  ;  AVhitlock  v.  or  ;my  other  executory  contract  by  deed, 

Ramsey,    2    Munf.    510 ;    Ankerstein    v.  if  tlie  name  of  the  obligor  in  the  bond  is 

Clark,  4  T.  K.   616.     It  is  said  that  an  ditiereut  from  the  signature,  as  if  it  were 

allegation,  that  J.  S.  otherwise  11.  S.  made  written  John  aiul  signed  William,  it   is 

a  deed,  is  not  su])ported  by  evidence,  that  said  to  be  void  at   law   for  uncertainty, 

J.  S.  made  a  deed  by  the  name  of  R.  S.  unless  helped  by  proper  averments  on  the 

1    Stark.    Evid.    513,   cites    Ilyckman   v.  record.     A  mistake  in  this  matter,  as  in 

Shotbolt,  Dyer,  279,  j)!.  9.     The  doctrine  any  other,  in  drawing  uj)    the   contract, 

of  that  case  is  vory  clearly  exi)ounded  by  may  be  reformed  by  bill  in   e(|uity.     At 

I'arke,  B.,  in  Williams  v.  Bryant,  5  ^lees.  law,  where  the  obligor  has  been  sued  by 

&  Wels.  447.      In  regard   to    a    disciep-  liis  true  nartie,  signed  to  the  bond,  and 

ancy  between  the  name  of  the  obligor  in  not  by  tiiat  written  in  the  body  of  it,  and 

the  body  of  a  deed,  and  in  the  signature,  the  naked  fact  of  the  discrepancy,  unex- 

a  distinction  is  to  be  observed  between  plained,  is  all  which  is  jircsenteil  by  the 

transactions  winch   derive   their   etHcacy  record,  it  has  always  been  held  bad.     This 

wholly  from  the  dee<l,  and  those  which  do  rule  was  originally  founded  in  this,  that  a 

not.     Thus,  in  a  feotl'inent  at  the  common  man  cannot  have  two  nanu^s  of  hiijitism  at 

law,  or  a   sale   of  personal  property  by  the  same  time ;  for  whatever  name  was 


82 


LAW    OF   EVIDENCE. 


[part  II. 


is  set  out,  on  oyer,  the  rule  is  otherwise  ;  for,  to  have  oyer,  is,  in 
modern  practice,  to  Ijc  Turiiished  witli  an  exact  and  literal  copy 


imposed  at  liis  baptism,  wlietlier  sinjile  or 
coiiiiKmiidod  of  several  names,  he  heiiiff 
baptized  but  once,  tliat  and  tliat  alone  was 
his  baptismal  name;  and  by  that  name  he 
declared  himself  bound.  80  it  was  held 
in  Serehor  v.  Talbot,  8  Hen.  Vi.  'Zb,  pi.  (3, 
and  subse(juentlv'  in  Thonit<m  v.  Wikes, 
34  Hen.  VI-.  I'J,  pi.  oO;  Field  v.  Winslow, 
Cro.  Kl.  S'.»7  ;  Oliver  ;;.  Watkins,  Cro.  Jac. 
058  ;  Maby  v.  Shejjhei'd,  Cro.  Jac.  (JlO ; 
Evans  v.  King,  WiJJes,  554 ;  Clerke  v. 
Isted,  Lutw.  275  ;  Gould  r.  Barnes,  3 
Taunt.  504.  "  It  appears  from  these  cases 
to  be  a  settled  point,"  said  Parke,  B.,  in 
Williams  v.  Jiryant,  '•  that  if  a  declara- 
tion agiiin.st  a  defendant  by  one  Christian 
name,  as,  tor  insUincc,  Joseph,  state  that 
he  executed  a  bond  by  the  name  of 
Thomas,  and  there  be  no  averment  to  explain 
the  dijference,  such  as  that  he  was  known  by 
the  latter  name  at  the  time  of  the  execution, 
such  a  decLn-ation  would  be  bad  on  de- 
murrer, or  in  arrest  of  judgment,  even 
after  issue  joined  on  a  jilea  of  non  est  fac- 
tum. And  tlie  rea^son  appears  to  be,  tliat 
in  bonds  and  deeds,  the  etiicacy  of  whicli 
dei)euds  on  the  instrument  itself,  and  not 
on  matter  in  jials,  there  must  be  a  certain 
dtsifiaatio  personui  oX  the  party,  which  regu- 
larly ought  to  be  by  the  true  first  name  or 
name  of  baptism,  and  surname  ;  of  which 
the  first  is  the  most  imporimit."  "  But 
on  the  other  hand,"  he  adds,  "  it  is  cer- 
tain, that  a  person  may  at  this  time  sue  or 
be  sued,  not  merely  by  his  true  name  of 
baptism,  but  by  any  first  name  which  he 
has  acquired  by  usage  or  reputation." 
"  If  a  party  is  called  and  known  liy  any 
proper  name,  by  that  name  he  may  be 
sued,  ami  the  misnomer  could  not  be 
pleaded  in  abalement;  and  not  only  is 
this  the  established  practice,  but  the  doc- 
trine is  promulgated  in  very  ancient 
times.  In  Bracton,  188,  b,  it  is  said, 
"  Item,  si  quis  binominis  fuerit,  sive  in 
nomine  proprio  sive  in  corpjomine,  illud 
nomen  lenemlum  erit,  quo  solet  frequentius 
an]K-llari,  quia  adeo  impositji  sunt,  ut 
demoustreiit  voluntatem  dicentis,  et  uti- 
mur  nolis  in  vocis  minislcrio."  And  if  a 
jiarty  may  sue  or  be  sued  by  the  proper 
name,  by  which  he  is  known,  it  must  be  a 
sulHcieiit  designation  of  him,  if  he  enter 
into  a  bond  by  that  name.  It  by  no 
means  follows,  theretbre,  that  tlie  decision 
in  the  case  of  Gould  c.  Barnes,  and  others 
before  referred  to,  in  which  tlie  question 
arose  on  the  record,  would  have  been  the 
same,  if  there  hiul  been  an  averment  on  the 
face  of  the  declaration,   that  the  party   was 


known  by  the  proper  name  in  irliich  the  bond 
was  made,  at  the  time  of  making  it.  We 
find  no  authorities  for  saying,  that  the 
declaration  would  have  been  bad  with 
such  an  averment,  even  if  there  hud  been  a 
total  variance  of  the  first  names;  still  less, 
where  a  man,  having  two  proper  names,  or 
names  of  baiitism,  lias  bound  liimself  by 
the  name  of  one.  And  on  the  plea  of  "  non 
est  factum,"  }vliere  the  dijfercnce  of  name 
does  not  appear  on  the  record,  and  tliere  is 
evidence  of  the  party  having  been  known, 
at  the  time  of  the  execution,  by  the  name 
on  the  instrument,  there  is  no  case,  that 
we  are  aware  of,  which  decides  that  the 
instrument  is  void."  The  name  written 
in  the  body  of  the  instrument  is  that 
which  the  part\'  by  the  act  of  execution 
and  delivery,  declares  to  be  his  own,  and 
by  which  he  acknowledges  himself  bound. 
By  this  name,  therefore,  he  should  regu- 
larly be  sued  ;  and  if  sued  with  an  alias 
dictus  of  his  true  name,  by  v.iiich  the 
instrument  was  signed,  and  an  averment 
in  the  declaration,  that  at  the  time  of  exe- 
cuting the  instrument  he  was  known  as 
well  by  the  one  name  as  the  other,  it  is 
conceived  that  he  can  take  no  advantage 
of  the  discrepancy ;  being  estopped  by 
the  deed,  to  deny  this  allegation.  Evans 
V.  Iving,  Willes,  555,  note  (b)  ;  Reeves  v. 
Slater,  7  Bai-n.  &  Cress.  486,  41)0 ;  Cro.  El. 
897,  note  (a).  See  also  Kegina  v.  Wool- 
dale,  G  Ad.  &  El.  54y,  N.  s. ;  Wooster  v. 
Lyons,  5  Blackf.  (JO.  If  sued  by  the  name 
written  in  tlie  body  of  the  deed,  without 
any  ex]ilanatory  averment,  and  he  pleads 
a  misnomer  in  abatement,  the  plaintiti',  in 
his  replication,  may  estop  him  by  the 
deed.  Dyer,  27'.),  b,  pi.  9,  note  ;  Story's 
Pleadings,  43  ;  Willes,  555,  note.  And  if 
he  should  be  sued  by  his  true  name,  and 
plead  von  est  factum,  wherever  this  plea, 
as  is  now  the  case  in  England,  since  the 
rule  of  Hilary  Term,  4  Wm.  IV.  II.  21, 
"  operates  as  a  denial  of  the  deed  in  point 
of  fact  only,"  all  other  detences  against  it 
being  required  to  be  specially  jileaded,  the 
difficulty  occasioned  by  the  old  decisions 
may  now  be  avoided  by  proof,  that  the 
party,  at  the  time  of  the  execution,  was 
known  liy  the  name  on  the  face  of  the 
deed.  In  those  American  States  wliich 
liave  abolished  spi'cial  jileadiug,  substitu- 
ting the  general  issue  in  all  cases,  with  a 
brief  statement  of  the  siiecial  matter  of 
defence,  jirobably  the  new  course  of  prac- 
tice thus  introduced,  would  lead  to  a  simi- 
lar result. 


CHAP.  II.]  THE   SUBSTANCE   OF   THE   ISSUE.  83 

of  the  deed  declared  on,  every  word  and  part  of  which  is  therehy 
made  descriptive  of  the  deed  to  be  offered  in  evidence.  In  such 
case,  if  the  plaintiff  does  not  produce  in  evidence  a  deed  literally 
corresponding  with  the  copy,  the  defendant  may  well  say  it  is  not 
the  deed  in  issue,  and  it  will  be  rejected. ^ 

§  70.  Where  a  record  is  mentioned  in  the  pleadings,  the  same 
distinction  is  now  admitted  in  the  proof,  between  allegations  of 
matter  of  substance,  and  allegations  of  matter  of  description ;  the 
former  rccpiire  only  substantial  proof,  the  latter  must  be  literalbj 
proved.  Thus,  in  an  action  for  malicious  prosecution,  the  day  of 
the  plaintiff's  acquittal  is  not  material.  Neither  is  the  term  in 
w^hich  the  judgment  is  recovered,  a  material  allegation,  in  an 
action  against  the  sheriff  for  a  false  return  on  the  writ  of  execu- 
tion. For  in  both  cases,  the  record  is  alleged  by  way  of  induce- 
ment only,  and  not  as  the  foundation  of  the  action ;  and  therefore 
literal  proof  is  not  required.^  So,  in  an  indictment  for  perjury  in 
a  case  in  chancery,  where  the  allegation  was,  that  the  bill  was 
addressed  to  Robert,  Lord  Ilenly,  and  the  proof  was  of  a  bill  ad- 
dressed to  Sir  Robert  Henly,  Kt.,  it  was  held  no  variance ;  the 
substance  being,  that  it  was  addressed  to  the  person  holding 
the  great  seal.^  But  where  the  record  is  the  foundation  of  the 
action,  the  term  in  which  the  judgment  was  rendered,  and  the 
number  and  names  of  the  parties,  are  descriptive,  and  must  be 
strictly  proved."^ 

§  71.  In  regard  to  prescrijytlons,  it  has  been  already  remarked, 
that  the  same  rules  apply  to  them  which  are  applied  to  contracts ; 
a  prescription  being  founded  on  a  grant  su{)posed  to  be  lost  by 


1  Waugh  V.  Bussel,  5  Taunt.  707,  709,  »  pg^  Bnller,  J.,  in  Eex  v.  Pippett,  1 
per  Gibbs,  C.  J.;  James  v.  Walruth,  8  T.  II.  240;  lloilman  v.  Forman,  8  Johns. 
Johns.  410  ;  Ilemy  v.  Clehmd,  14  Johns.  29;  Brooks  v.  Bemiss,  LI.  455;  The  State 
400 ;  Jansen  v.  Ostrander,  1  Cowen,  070,  v.  Catte3%  2  Murpliy,  820. 

ace.     In  Henry  v.  Brown,  14  Johns.  4'.),  *  Ha,«tall    v.    Stratton,    1    H.  Bl.  49; 

where   the    condition    of  the    bond   was  Wooihbrd  v.  Ashley.  11  East,  508 ;  Black 

"  withoirt  fi'and  or  other  delay,"  and  in  the  v.  Braybrook,  2   Stark.  K.  7  ;  Baynes  v. 

oyer  the  word  "other"  was  omitted,  the  Forrest,  2  Str.  892;  United  States  v.  JIc- 

defendanr  moved  to  set  aside  a  verdict  for  Neal,  1  Gall.  387.     [And  where  in  a  writ 

the  plaintiff,  because  the  bond  was  ailmit-  of  error  brought  to  reverse  the  juilgnient 

ted   in   evidence  without  re<iard   to   tlie  of  icwiVer,  the  judgment  was  called  a  judg- 

variance ;  but  the  court  refused  the  nu)-  ment   of  oiitlaicn/,    the   variance,    upon   a 

tion,  partly  on  tho  ground  that  the  vari-  plea  of  «'// /(V/ ncwf/,  was  held  fatal.     Bur- 

ance  was  inunaterial,  and  partly,  that  the  nett  r.  Phillips,  6  Eng.  Law  i  Fq.  467. 

oyer  was   clearly  amendable.      See   also  And  though  the  variance  be  in  regard  to 

Dorr  V.  Femio,  12  Pick.  521.  tacts   and  circumstances  which  need  not 

2  Purcell  i'.  IMacnamara,  9  East,  157 ;  have  been  stated,  it  is  still  fatal.  Wliita- 
Stoddarl  v.  Palmer,  4  B.  &  B.  2;  Phillips  ker  v.  Bramson,  2  Pauie,  C.  C.  209.] 

V.  Shaw,  4  B.  &  A.  435;  5  B.  &  A.  964. 


84  LAW   OF   EVIDENCE.  [PART   II. 

lapse  of  timc.^  If,  therefore,  a  prescriptive  right  be  set  forth  as 
the  foundation  of  the  action,  or  be  pleaded  in  bar  and  put  in  issue, 
it  must  be  proved  to  the  fnll  extent  to  which  it  is  claimed;  for 

/every  fact  alleged  is  descriptive  of  the  supposed  grant.  Thus,  if 
in  trespass,  for  breaking  and  entering  a  several  fishery,  the  plain- 
tiff, in  his  replication,  prescribes  for  a  sole  and  exclusive  right  of 
fishing  in  four  places,  upon  which  issue  is  taken,  and  the  proof  be 
of  such  right  in  only  three  of  the  places,  it  is  a  fatal  variance.  Or, 
if  in  trespass,  the  defendant  justify  under  a  prescriptive  right  of 
common  on  five  hundred  acres,  and  the  proof  be,  that  his  ancestor 

X  had  released  five  of  them,  it  is  fatal.  Or  if,  in  replevin  of  cattle, 
the  defendant  avow  the  taking  damage  feasant,  and  the  plaintiff 
plead  in  bar  a  prescriptive  right  of  common  for  all  the  cattle,  on 
which  issue  is  taken,  and  the  proof  be  of  such  right  for  only  a  part 
of  the  cattle,  it  is  fatal. ^ 

§  72.  But  a  distinction  is  to  be  observed  between  cases,  where 
the  prescription  is  the  foundation  of  the  claim,  and  is  put  in  issue, 
and  cases  where  the  action  is  founded  in  tort,  for  a  disturbance  of 
the  plaintiff  in  his  enjoyment  of  a  prescriptive  right.  For  in  the 
latter  cases  it  is  sufficient  for  the  plaintiff  to  prove  a  right  of  the 
same  nature  with  that  alleged,  though  not  to  the  same  extent ; 
the  gist  of  the  action  being  the  wrongful  act  of  the  defendant,  in 
disturbing  the  plaintiff  in  his  right ;  and  not  the  extent  of  that 
ridit.  Therefore,  where  the  action  was  for  the  disturbance  of  the 
plaintiff  in  his  right  of  common,  by  opening  stone  quarries  there, 
the  allegation  being  of  common,  by  reason  both  of  a  messuage  and 
of  land,  whereof  the  plaintiff  was  possessed,  and  the  proof,  in  a  trial 
upon  a  general  issue,  being  of  common  by  reason  of  the  land  only, 
it  was  held  no  variance ;  the  court  observing,  that  the  proof  was 
not  of  a  different  allegation,  but  of  the  same  allegation  in  part, 
which  was  sufficient,  and  that  the  damages  might  be  given  accord- 
ingly.^ Yet  in  the  former  class  of  cases,  where  the  prescription 
is  ex[)rcssly  in  issue,  proof  of  a  more  ample  right  than  is  claimed 
will  not  1)C  a  variance ;  as,  if  the  allegation  be  of  a  right  of  com 
mon  for  sheep,  and  the  proof  be  of  such  right,  and  also  of  common 
for  cows.* 

1  Supra,  §  58  [post,  vol.  2,  §  537-546,  Yarley  v.  Turnock,  Cro.  Jac.  629 ;  Mani- 
tit.  PrkscriptionJ.  fold  v.  Pennington,  4  B.  &  C.  161. 

2  Ko^ers  V.  Allen,  1  Campb.  313,  315;  *  Bushwood  v.  Pond,  Cro.  El.  722; 
Rotherliani  v.  Green,  Noy,  67  ;  Conyers  Tewksbury  v.  Bricknell,  1  Taunt.  142; 
i;.  Jackson,  Clayt.  19 ;  Bull.  N.  P.  299.  supra,  §§  58,  67,  68. 

a  Rickets  v  Salway,  2  B.   &  A.  860; 


CHAP.  II.]  THE   SUBSTANCE   OF   THE   ISSUE.  85 

§  73.  But  the  party  may  now,  in  almost  every  case,  ovoid  the 
consequences  of  a  variance  between  the  allegation  in  Jhe|)lea(lings 
and  the  state  of  facts  proved,  ly  amendment  of  the  rccorcL  This 
power  was  given  to  the  courts  in  England  l)y  Lord  Tenderden's 
Act,i  in  regard  to  variances  between  matters  in  writing  or  in  print, 
produced  in  evidence,  and  the  recital  thereof  upon  the  record  ;  and 
it  was  afterwards  extended  2  to  all  other  matters,  in  the  judgment 
of  the  court  or  judge  not  material  to  the  merits  of  the  case,  upon 
such  terms  as  to  costs  and  postponement  as  the  court  or  judge  may 
deem  reasonable.  The  same  power,  so  essential  to  the  administra- 
tion of  substantial  justice,  has  been  given  by  statutes  to  the  courts 
of  most  of  the  several  states,  as  well  as  of  the  United  States ;  and 
in  both  England  and  America  these  statutes  have,  with  great  pro- 
priety, been  liberally  expounded,  in  furtherance  of  their  beneficial 
design.3  The  judge's  discretion,  in  allowing  or  refusing  amend-!  )  I 
ments,  like  the  exercise  of  judicial  discretion  in  other  cases,  cannot,!  ,  \ 
in  general,  be  reviewed  by  any  other  tribunal.*  It  is  only  in  thel 
cases  and  in  the  manner  mentioned  in  the  statutes,  that  the  pro- 
priety of  its  exercise  can  be  called  in  question. 

1  9  Geo.  IV.  c.  15.  Lamey  v.  Bishop,  4  B.  &  Ad.  479 ;  Briant  v. 

2  By  Stat.  3  &  4  Wm.  IV.  c.  42,  §  23.      Eicke,  Mood.  &  Malk.  35'J  ;  Parks  v.  Edge, 
8  See  Hanbury  v.  Ella,  1  Ad.  &  El.  61 ;     1  C.  &  M.  42U  ;  Masternian  v.  Judson,  8 

Parry  v.  Eairhurst,  2  Cr.  M.  &  R.  I'JO,  Bing.  224  ;  Brooks  v.  Blancluird,  1  C.  & 
1<J6;  Doe  v.  Edwards,  1  M.  &  Rob.  31'J ;  M.  779;  Jelfr.  Oriel,  4  C.  &  P.  22.  The 
6  C.  &  P.  208,  s.  c. ;  Hemming  v.  Parrv,  American  cases,  which  are  very  numer- 
6  C.  &  P.  580 ;  Mash  v.  Densham,  1  M.  &  ous,  are  stated  in  1  Mctcalf  &  Perkins's  Di- 
Rob.  442;  Ivey  v.  Young,  Id.  545;  How-  gests,  p.  145-162,  and  in  Putnam's  Supple- 
ell  V.  Thomas,  7  C.  &  P.  342;  Mayor,  &c.,  ment,  vol.  2.  p.  727-730.  [See  also  post, 
of  Carmarthen  v.  Lewis,  6  C.  &  P.  608;  vol.  2,  §  11  a-U  e.]  ^  ^  „., 
Hill  V.  Salt,  2  C.  vt  M.  420 ;  Cox  v.  Paint-  *  Doe  v.  Errington,  1  M.  &  Rob.  344, 
er  1  Nev.  &  P.  581 ;  Doe  r.  Long,  9  C.  &  note  ;  Mellish  u.  Richardson,  9  Buig.  12o; 
P.  777 ;  Ernest  v.  Brown,  2  M.  &^Rob.  13 ;  Parks  v.  Edge,  1  C.  &  M.  42'.) ;  Jcnkuis  v. 
Storv  V.  Watson,  2  Scott,  842 ;  Smith  v.  Phillips,  9  C.  &  P.  766  ;  Mcrnam  v.  Lang- 
Braiidram,  9  Dowl.  430;  Whitwell  v.  don,  10  Conn.  4(iO,  473;  Clapp  c.  Balch, 
Scheer,  8  Ad.  &  El.  301 ;  Read  r.  Duns-  3  Greenl.  216,  219  ;  Mandevdie  v.  Wilson, 
more,  9  C.  &  P.  588 ;  Smith  v.  Knowel-  5  Cranch,  15 ;  Marine  Ins.  Co.  v.  Ilodg- 
den,  8  Dowl.  40 ;  Norcott  v.  Mottram,  7  son,  6  Cranch,  206 ;  Walden  i-.  Craig,  9 
Scott,  176;  Lcggei-.  Boyd,  5  Bing.  N.  C.  Wheat.  576;  Chirac  r.  Reinicker,  11 
240.  Amendments  were,  refused  in  Doe  Wheat.  302;  Tnited  States  v.  Butord,  o 
«.  Errington,  1  Ad.  &  El.  750;  Cooper  Peters,  12,  32;  Benner  i-.  Frey,  1  Bmn. 
V.  Wiiitehouse,  1  C.  &  P.  545;  John  c.  366;  Bailey  r.  Musgrave,  2  S.  &  R.  21^; 
Currie,  Id.  618 ;  Watkins  v.  Morgan,  Id.  Bright  i:  Sugg,  4  Dever.  492.  But  it  the 
661 ;  Adams  r.  I'ower,  7  C.  &  P.  76  ;  judge  exercises  his  discretion  m  a  manner 
Brashler  v.  Jackson,  6  M.  &  W.  549  ;  Doe  clesirly  and  manitestly  wrong,  it  is  said 
V.  Rowe,  8  Dowl.  444 ;  Einpson  v.  Grittin,  that  the  court  will  interfere  and  set  it 
3P.  &D.  168.  The  following  are  cases  right,  llackman  c.  lerme,  1  31.  \^  W. 
of  variance,  arising  under  Lord  Tenter-  505  ;  Geacli  i-.  Ingdl,  9  Jur.  691  ;  14  M.  6g 
den's  Act.  Bentzing  v.  Scott,  4  C.  .^  P.  W.  95. 
24;   Moilliet  v.  Powell,  6  C.  &  P.  223; 

VOL.  I.  8 


86  LAW   OF   EVIDENCE.  [PART   II, 


CHAPTER    III. 


OP    THE    BURDEN    OF    PROOF. 

[  *  §  74.  The  burden  of  proof  is  upon  him  who  takes  the  afiftrmative  of  the  issue. 

75.  The  phiintiff  will  have  the  open  and  close,  if  it  be  necessary  for  him  to  give 

any  proof,  in  the  first  instance,  even  as  to  damages. 

76.  This  will  enibi-ace  all  actions  where  damages  are  unlic^uidated,  even  where  no 

general  issue  is  pleaded. 

77.  Proceedings  not  according  to  the  common  law,  are  conducted  in  a  similar 

mode. 

78.  Where  the  action  is  based  upon  negative  averments,  proof  must  be  given 

in  their  support  in  the  first  instance. 
79  and  n.  But  where  the  negative  fact  is  peculiarly  in  the  knowledge  of  defendant, 
slight  proof  is  sufficient. 

80.  Where  the  action  is  based  upon  a  negative  breach  of  duty,  some  evidence 

must  be  given  in  support  of  the  allegations. 

81.  Many  other  cases  where  negative  is  required  to  be  proved.] 

§  74.  A  THIRD  RULE,  wliicli  governs  in  the  production  of  evidence, 
is,  that  the  obligation  of  proving  any  fact  lies  upon  tJie  party  who 
substantially  asserts  the  affirmative  of  the  issue.  This  is  a  rule  of 
convenience,  adopted  not  because  it  is  impossible  to  prove  a  nega- 
tive, but  because  the  negative  does  not  admit  of  the  direct  and 
simple  proof  of  which  the  affirmative  is  capable.^  It  is,  therefore, 
generally  deemed  sufficient,  where  the  allegation  is  affirmative,  to 
oppose  it  with  a  bare  denial,  until  it  is  established  by  evidence. 
Such  is  the  rule  of  the  Roman  law.  Ul  incumbit  probatio  qui  elicit, 
non  qui  negat?  As  a  consequence  of  this  rule,  the  party  who  assorts 
the  affirmative  of  the  issue  is  entitled  to  begin  and  to  reply ;  and 
having  begun,  he  is  not  permitted  to  go  into  ^lalf  of  his  case,  and 

1  Drangnet  v.  Prudhommc,  3  Louis.  R.  any  aspect  of  the  cause ;  the  latter  shifts 

83,  80 ;  Costigaii  v.  Mohawk   &   Hudson  from  side  to  side  in  the  progress  of  a  trial 

K.  Co.  2  Denio,  GO'J.    [Powers  v.  Russell,  acconling  to  the  nature  and  strength  of 

13  Pick.  69,  76  ;  Commonwealth  v.  Tuey,  the  proofs  oiTered  in  support  or  denial  of 

8    Cush.    1 ;  Bm-nham  v.  Allen,  1  Gray,  the  main  fact  to  be  established.     Central 

496,    499;     Crownlnshield    v.    Crownin-  Bridge    Corporation    v.   Butler,   2  Gray, 

shield,  2  Gray,  r)24,  520.     The  burden  of  132;  Blanchard  v.  Young,  11  Cush.  345; 

proof  and  the  weight  of  evidence  are  two  Spaulding  v.  Hood,  8  Cush.  605,  606]. 

very   ditferent   things.     The   former    re-  ^  Dig.  lib.  22,  tit.  3,1.  2;  Mascard.de 

mains  on  the  party  atKrming  a  fact  in  sup-  Prob.  Concl.  70,  tot.  ;  Concl.  1128,  n.  10. 

I)ort  of  his  case,  and  does  not  change  in  See  also  Tait  on  EvicJ.  p.  1. 


CHAP.  III.]  THE    BURDEN   OF    PROOF.  87 

reserve  the  remainder  ;  but  is  generally  obliged  to  develop  the  wholc.^ 
Regard  is  had,  in  this  matter,  to  the  substance  and  eilect  of  tho 
issue,  rather  than  to  the  form  of  it ;  for  in  many  cases  the  party,  by 
making  a  sliglit  change  in  his  pleading,  may  give  the  issue  a  nega- 
tive or  an  affirmative  form,  at  his  pleasure.  Therefore  in  an  action 
of  covenant  for  not  repairing,  where  the  breach  assigned  was  that 
the  defendant  did  not  repair,  but  suffered  the  premises  to  be  ruin- 
ous, and  the  defendant  pleaded  that  he  did  repair,  and  did  not  suf- 
fer the  premises  to  be  ruinous,  it  was  held,  that  on  this  issue  the 
plaintiff  should  begin.^  If  the  record  contains  several  issues,  and 
the  plaintiff  hold  the  affirmative  in  any  one  of  them,  he  is  entitled 
to  begin ;  as,  if  in  an  action  of  slander  for  charging  the  plaintiff 
with  a  crime,  tlie  defendant  should  plead  not  guilty,  and  a  justifica- 
tion. For  wherever  the  plaintiff  is  obliged  to  produce  any  proof  in 
order  to  establish  his  right  to  recover,  he  is  generally  required  to  go 
into  his  whole  case,  according  to  the  rule  aljove  stated,  and  there- 
fore is  entitled  to  reply.  How  far  he  shall  proceed  in  his  i)roof,  in 
anticipation  of  the  defence  on  that  or  the  other  issues,  is  regulated 
by  the  discretion  of  the  judge,  according  to  the  circumstances  of 
the  case ;  regard  being  generally  had  to  the  question,  whether  the 
whole  defence  is  indicated  by  the  plea,  with  sufficient  particularity 
to  render  the  plaintiffs  evidence  intelligible.^ 

§  75:  Whether  the  necessity  of  proving  damages^  on  the  part  of 
the  plaintiff,  is  such  an  affirmative  as  entitles  him  to  begin  and 

1  Rees  V.   Smith,  2  Stark.  R.   31  ;    3         2  Soward  v.  Leggatt,  7  C.  &  P.  613. 
Chittv,  Gen.  Pract.  872-877  ;  Switl's  Law  ^  ii^es  v.  Sniitli,  2  Stark.  R.  31 ;  Jack- 

of  Evid.  p.  152;  Bull.  N.  P.  298;  Browne  son  v.  Hcsketh,  Id.  518  ;'  James  v.  Salter, 

V.  Murray,  R.  &  Mood.  254;     Jones   v.  1  M.  &  Rub.  501 ;  Rawlins  c.  Desborongh, 

Kennedy,"  11    Pick.  125,  132.     The   true  2M.  &Rub.  328;  Comstock  r.  Hadlyme, 

test   to   determine  which    party  has   the  8  Conn.  2t;i ;  Curtis  r.  Wheeler,  4  C.  & 

right  to  beirin,  and  of  com-se  to  determine  P.  I'JIJ ;  1  M.  &  M.  -I'.K'.,  s.  c.  ;  Williams  v. 

where  is  the  burden  of  proof,  is  to  consid-  Thomas,  4  C.  &  P.  234 ;  7  Pick.  100,  per 

er  which  party  would  be  entitled  to  the  Parker,  C.  J.     In  Browne  r.  Mm-ray,  Ry. 

verdict,  if  no'  evidence  were  ottered   on  &  Mood.  254,  Lord  C.  J.  Abbott  gave  the 

either  side ;   for  tlie  burden  of  proof  lies  plaintitf   his   election,   after   proving   the 

on  the  partv  against  whom,  in  such  case,  general  issue,  eitlier  to  proceed  inmiedi- 

thc  verdict"  ouiilit  to  be  given.     Leete  v.  ately  with  all  his  proof  to  rebut  the  antici- 

Gresliam  Lite  Ins.  Co.  7  Kng.  Law  &  Eq.  patcd  defence,  or  to  reserve  such  i)roof 

Rep.  578;  15  Jur.  IIGI.     And  see  Hack-  till  the  defendant  had  closed  his  own  evi- 

man  v.  Fernie,  3  M.  &  W.  510.     [  *  Mr.  dence  ;  only  refusing  him  the  privilege  of 

Tavlor  suiigests  another  test :    To  exam-  dividing  liis  case  into  halves,  giving  part 

ine"  what  would  be  tlie  etlect  of  striking  in  tiie  first  instance,  and  tlie  residue  after 

out  of  the   record  the   allegations  to  be  tbe  defendant's  case  was  ju-oved.  [York  c. 

proved,  that  tiie  burden  of  proof  rests  up-  I'ease,  2  (iray,  282  ;  llolbrook  c.  McBride, 

on  tlie  party  whose  case  would  be  thereby  4  lb.    218 ;  Cashing  v.  Billings,  2  Cush. 

destroyed. "  1  Taylor  Ev.  §  338  ;  Amos  c.  158.] 
Hughes,   1   M.   &  Rob.   404,   jjer  Alder- 
son,  B.] 


88  LAW   OF   EVIDENCE.  [PART  II. 

reply,  is  not  perfectly  clear  by  the  authorities.  Where  such  evi- 
dence forms  part  of  the  proof  necessary  to  sustain  the  action,  it 
may  well  be  supposed  to  fall  within  the  general  rule ;  as,  in  an 
action  of  slander,  for  words  actionable  only  in  respect  of  the  special 
damage  tlierol)y  occasioned ;  or,  in  an  action  on  the  case,  by  a 
master  for  the  beating  of  his  servant  ^9er  quod  servttium  amisit.  It 
would  seem,  however,  that  whore  it  appears  by  the  record,  or  by 
the  admission  of  counsel,  that  the  damages  to  be  recovered  are 
only  nominal,  or  are  mere  matter  of  computation,  and  there  is  no 
dispute  about  them,  the  formal  proof  of  them  will  not  take  away 
the  defendant's  right  to  begin  and  reply,  whatever  be  the  form  of 
the  pleadings,  provided  the  residue  of  the  case  is  affirmatively 
justified  by  the  defendant.^  And  if  the  general  issue  alone  is 
pleaded,  and  the  defendant  will,  at  the  trial,  admit  the  whole  of 
the  plaintiff's  case,  he  may  still  have  the  advantage  of  the  beginning 
and  reply .^  So  also  in  trespass  quare  clauBum  fregit,  where  the 
defendant  pleads  not  guilty  as  to  the  force  and  arms  and  whatever 
is  against  the  peace,  and  justifies  as  to  the  residue,  and  the  dam- 
ages are  laid  only  in  the  \\?,\\dX  formula  of  treading  down  the  grass, 
and  subverting  the  soil,  the  defendant  is  permitted  to  begin  and 
reply  ;  there  being  no  necessity  for  any  proof  on  the  part  of  the 
plaintiff."^ 

§  76.  The  difficulty  in  determining  this  point  exists  chiefly  in 
those  cases,  where  the  action  is  for  unliquidated  damages,  and  the 
defendant  has  met  the  whole  case  with  an  affirmative  plea.  In 
these  actions  the  practice  has  been  various  in  England ;  but  it  has 

1  Fowler  v.  Coster,  1  Mood.  &  M.  243,  ner,   Id.   721 ;    Mills  v.   Oddy,  Id.   728 ; 

per   Lord   Tenterden.     And  see   the   re-  Scott  v.  Hull,  8  Conn.  296.     But  see  infra, 

porter's  note  on  that  case,  in  1  Mood.  &  §  7G,  n.  4. 

M.  278-28L     Tiie  dictum  of  the  learned         =*  Hodges  v.   Ilolden,  3   Campb.  366  ; 

judge,  in  Urooks  v.  Barrett,  7  Pick.  100,  Jackson  v.   Hesketh,   2    Stark.    11.    518 ; 

is  not  supposed  to  militate  with  this  rule ;  Pearson  v.  Coles,  1  Mood.  &  Eob.   206 ; 

but  is  conceived  to  apply  to  cases  where  Davis   v.  Mason,  4   Pick.  156 ;  Leech  v. 

proof  of  the  note  is  required  of  tlie  i)lain-  Arinitage,  2  Dall.  125.     [WIicmm:)  a  deferid; 

tiff.      Sanford    v.    Hunt,  1  C.  &  P.    118;  ant  under  a  rule  of  conrt  filed  an  ailniis- 

(ioodlitle  ('.  IJraham,  4  T.  11.  4'.)7.     [For  sion  of  the  plaintiff's  j^iriiin'i  j'u'ii   cnsi',  Hi 

a   qualification  of  Erooks  /'.  Barrett,  see  order' to   obtain    tlie    riuht    to  open   and 

Crowninshield  r.  Crowninshield,  2  Gray,  close,  ho  was  held  not  to  be  thereby  ^4: 

528.]  top] led  from   setting   up   in   defence   the 

-  Tucker  v.  Tucker,  1    Mood.    &   M.  statute  of  limitations.     Ennnons  v.  Hay- 

536;  Fowler  v.  Coster,  Id.    241;   Doe  v.  ward,  11  Cush.  48;  nor  from  showing  that 

Barnes,  1  M.  &  llob.  386 ;  Doe  v.  Smart,  the  plaintiff  had  no  title  to  the  note  sued 

Id.  476;  Fish  v.  Travers,  3  C.  &  P.  578;  on.     Si)aulding  v.  Hood,  8  Cush.  602.    An 

Comstock  D.  Hadlyme,  8  Conn.  261 ;  La-  auditor's   report  in  favor  of  the  plaintiff 

con  ».  Higgins,  3  Stark.  R.  178 ;  Corbett  will  not  give  the  defendant  the  right  to 

V.    Corbett,   3    Camjjb.    368 ;    Foman  v.  open   and  close.     Snow  v.  Batchelder,  8 

Thompson,  6  C.  &  P.  717 ;  Smart  v.  Ray-  Cush.  513.] 


CHAP.  III.] 


THE   BUEDEN   OF   PROOF. 


89 


at  Icng-th  been  settled  by  a  rule,  by  tlie  fiftocii  judges,  that  tlie 
plaintiff  shall  begin  in  all  actions  for  personal  injuries,  liljol,  and 
slander,  though  the  general  issue  may  not  be  pleaded,  and  the 
affirmative  be  on  the  defendant.^  In  actions  upon  contract,  it  was, 
until  recently,  an  open  question  of  practice ;  having  been  some- 
times treated  as  a  matter  of  right  in  the  party,  and  at  other  times 
regarded  as  resting  in  the  discretion  of  the  judge,  under  all  the 
circumstances  of  the  case.^  But  it  is  now  settled,  in  accordance 
with  .the  rule  adopted  in  other  actions.^  In  this  country  it  is 
generally  deemed  a  matter  of  discretion,  to  be  ordered  by  the 
judge  at  the  trial,  as  he  may  think  most  conducive  to  the  adminis- 
tration of  justice  ;  but  the  weight  of  authority,  as  well  as  the  anal- 
ogies of  the  law,  seem  to  be  in  favor  of  giving  the  opening  and 
closing  of  the  cause  to  the  plaintiff,  wherever  the  damages  are  in 
dispute,  unliquidated,  and  to  be  settled  by  the  jury  upon  such 
evidence  as  may  be  adduced,  and  not  by  computation  alone.* 
§  77.  Where  the  proceedftigs  are  not  according  to  the  course  of 


1  Carter  v.  Jones,  6  C.  &  P.  64. 

2  Bedell  v.  Eussell,  Ky.  &  M.  293; 
Fowler  v.  Coster,  1  M.  &  M.  241 ;  Revett 
r.  Braham,  4  T.  R.  4"J7 ;  Hare  v.  iMuiui,  1 
IM.  &  M.  241,  note ;  Scott  v.  Hull,  8  Conn. 
2',)6  ;  Burrell  v.  Nicholson,  6  C.  &  P.  202 ; 
1  INI.  &  R.  304,  30G ;  Hoggett  v.  Exley,  9 
C.  &  P.  324.  See  also  3  Chitty,  Gen. 
Practice,  872-877. 

»  Mercer  v.  Whall,  9  Jur.  bip  ;  5  Ad. 
&  El.  447,  N.  s. 

*  Such  was  the  course  in  Young  v. 
Bairncr,  1  Esp.  103,  which  was  assumpsit 
for  work,  and  a  plea  in  ahatement  for  the 
non-joinder  of  other  defendants ;  Robey 
r.  Howard,  2  Stark.  R.  555,  S.  P.  ;  — 
Staustield  v.  Lew,  8  Stark.  R.  8,  S.  P. ; 
—  Lacon  v.  Hig-.unns,  2  Stark.  R.  178, 
whore  in  assumpsit  for  goods,  coverture 
of  the  defendant  was  the  sole  plea;  — 
Hare  v.  INIunn,  1  M.  &  M.  241,  note,  which 
was  assumpsit  for  nu)ney  lent,  with  a  plea 
in  abatement  for  the  non-joinder  of  other 
defendants;  —  Morris  ?'.  Lotan,  1  i\l.  & 
Rol).  233,  S.  P. ;  Wood  d.  Priugle,  Id.  277, 
which  was  an  action  for  a  libel,  with  sev- 
eral special  pleas  of  justification  as  to 
part,  but  no  general  issue ;  and  as  to  the 
parts  not  justified,  judgment  was  suffered 
i\v  default.  See  ace.  Comstock  v.  Ilad- 
Ivme,  8  Conn.  2(31 ;  Aver  v.  Austin,  0 
Pick.  225;  Hoggett  v.  Exley,  9  C.  &  P. 
324;  2  M.  &  Rob.  251,  s.  c.  On  the  other 
hand  are  Cooper  ?'.  Waklev,  3  Car.  & 
P.  474 ;  1  M.  &  M.  248,  s.  c.  whicli  was  a 
case  for  a  libel,  with  pleas  in  justification, 


and  no  general  issue ;  but  this  is  plainly 
contradicted  by  the  subsequent  case  of 
Wood  V.  Pringle,  and  has  since  been  over 
ruled  in  Mercer  v.  Whall ;  —  Cotton  v. 
James,  1  M.  &  M.  273 ;  3  Car.  &  P.  505, 
s.  c,  winch  was  trespass  for  entering  the 
plaintiff's  house,  and  taking  his  goods  with 
a  plea  of  justification  under  a  commission 
of  bankrui)tcy ;  but  this  also  is  expressly 
contradicted  in  Morris  ;-.  Lotan  ;  —  Bedell 
V.  Russell,  Ry.  &  ^I.  2Uo,  which  was  tres- 
pass of  assault  and  battery,  and  battery, 
and  for  shooting  the  plaintiff,  to  which  a 
justification  was  pleaded  ;  where  Best,  J., 
reluctantly  yielde<l  to  the  supposed  au- 
thority of  Hodges  V.  Holden,  3  Campb. 
366,  and  Jackson  ;•.  Hesketh,  2  Stark.  R. 
581 ;  in  neither  of  which,  however,  were 
the  damages  controverted;  —  Fish  v.  Trav- 
ers,  3  Car.  &  P.  578,  decided  by  Best,  J., 
on  the  authority  of  Cooper  v.  Wakley, 
and  Cotton  c.  James  ;  —  Burrell  v.  Nichol- 
son, 6  Car.  &  P.  202,  which  was  trespass 
for  taking  the  i)laintitf's  goods  in  his 
house,  and  detaining  tiiem  one  hour,  which 
the  defendant  justified  as  a  distress  for 
parish  rates ;  and  the  only  issue  was, 
whether  the  house  was  within  the  parish 
or  not.  But  here,  also,  the  damages  were 
not  in  dispute,  and  seem  to  have  been  re- 
garded as  merely  nominal.  See  also 
Scott  V.  Hull,  8  Ccmn.  296.  In  Norris  v. 
Ins.  Co.  of  North  America,  3  Yeates.  84, 
which  was  covenant  on  a  policy  of  iusm-- 
ance,  to  which  performance  was  pleadeil, 
the  damages  were  not  then  iu  dispute,  the 


8* 


90 


LAW   OF  EVIDENCE. 


[part  II. 


the  common  law,  and  where,  consequently,  the  onus  prohandl  is 
not  teclmically  presented,  the  courts  adopt  the  same  principles 


parties  having  provisionally  agreed  upon 
a  mode  of  liquidation.  But  in  England 
the  entire  subject  has  recently  umlergone 
a  review,  and  tiie  rule  has  been  estab- 
lished, as  ai>plicable  to  all  personal  ac- 
tions, that  the  plaintiff  shall  begin,  wher- 
ever he  goes  for  substantial  damages  not 
already  ascertained.  Mercer  v.  Whall,  9 
Jur.  576 ;  5  Ad.  &  El.  447,  n.  s.  In  this 
ease  Lord  Denman,  C.  J.,  in  delivering 
the  judgment  of  the  court,  expressed  his 
opinion  as  follows  :  "  The  natural  course 
would  seem  to  be,  that  the  plaintiff  should 
bring  Iiis  own  cause  of  complaint  before 
the  court  and  jury,  in  everj^  case  where 
he  has  any  thing  to  prove  eitJier  as  to  the 
facts  necessary  for  his  obtaining  a  verdict, 
or  as  to  the  amount  of  damage  to  which 
he  conceives  the  proof  of  such  facts  may 
entitle  him.  The  law,  however,  has  by 
some  been  supposed  to  difier  from  this 
course  and  toi-equire  that  the  defendant  by 
admitting  the  cause  of  action  stated  on  the 
record,  and  pleading  only  some  alfirina- 
tive  fact,  which,  if  proved,  will  defeat  the 
plaintiff's  action,  may  entitle  himself  to 
open  the  proceeding  at  the  trial,  anticipa- 
ting the  plaintiff's  statement  of  his  injury, 
disparaging  him  and  his  ground  of  com- 
plaint, offering  or  not  ofiering,  at  his  own 
option,  any  proof  of  his  defensive  allega- 
tion, and,  if  he  offers  that  proof,  adapting 
it  not  to  the  ])laintitt"s  case  as  established, 
but  to  that  which  he  chooses  to  represent 
that  the  plaintiff's  case  will  be.  It  ap- 
pears expedient  that  the  plaintiff  should 
begin,  in  order  that  the  judge,  the  jury, 
and  the  dclbndant  himself  should  know 
precisely  how  the  claim  is  shaped.  This 
disclosure  may  convince  the  defendant 
that  the  defence  which  he  has  pleaded 
cannot  be  established.  On  hearing  the 
extent  of  the  demand,  the  defendant  may 
be  induced  at  once  to  submit  to  it  rather 
than  persevere.  Thus  the  affiiir  reaches 
its  natural  and  best  conclusion.  If  this 
does  not  occur,  the  plaintiff,  by  bringing 
forward  his  case,  points  his  attention  to 
the  proy)er  object  of  the  trial,  and  enables 
the  defendant  to  meet  it  with  a  full  under- 
standing of  its  nature  and  character.  If 
it  were  a  presmnption  of  law,  or  if  expe- 
rience prove,  that  tlie  plaintiff's  evidence 
must  alwaj's  occu])y  many  hours,  and  that 
the  defendant's  could  not  last  more  than  as 
many  minutes,  some  advantage  would  be 
secured  by  postponing  the  plaintiff's  case 
to  that  of  the  defendant.  But,  first,  the 
direct  contrary  in  both  instances  may 
be  true ;  and,  secondly,  the  time  would 
only  be  saved  by  stopping  the  cause  for 


the  purpose  of  taking  the  verdict  at  the 
close  of  the  defendant's  proofs,  if  that  ver- 
dict were  in  favor  of  the  defendant.  Thi^ 
has  never  been  done  or  projjos^'d  ;  if  it 
were  suggested,  the  jury  would  be  likely 
to  say,  on  most  occasions,  that  they  could 
not  form  a  satisfactory  opinion  on  the  ef- 
fect of  the  defendant's  proofs  till  they  liad 
heard  tlie  grievance  on  which  tlie  plaintiff 
founds  his  action.  In  no  other  case  can 
any  practical  advantage  bo  suggested  as 
arising  from  tiiis  method  of  proceeding. 
Of  the-disadvantages  that  may  result  from 
it,  one  is  the  strong  temptation  to  a  defend- 
ant to  abuse  the  privilege.  If  he  well 
knows  that  the  case  can  be  proved  against 
liim,  there  may  be  skilful  management  in 
confessing  it  by  his  plea,  and  atiirming 
something  bj'  way  of  defence  Mhicii  he 
knows  to  be  untrue,  for  the  mere  purpose 
of  beginning."  See  9  Jur.  578;  5  Ad.  & 
El.  458,  N.  s.  Ordinarily  speaking,  the 
decision  of  the  judge,  at  XUi  Friua,  on  a 
matter  resting  in  his  discretion,  is  not  sub- 
ject to  revision  in  any  other  court.  But 
in  Ilackman  v.  Fernie,  5  M.  &  W.  505,  the 
court  observed,  that  though  they  might 
not  interfere  in  a  very  doubtful  case,  yet 
if  the  decision  of  the  judge  "  were  clear- 
ly and  manifestly  wrong,"  they  would  in- 
terfere to  set  it  right.  In  a  subsequent 
case,  however,  it  is  said  that  instead  of 
"  were  clearly  and  manifestly  wrong,"  the 
language  actually  used  by  the  court  was, 
"  did  clear  and  manifest  wrong;  "  meaning 
that  it  was  not  sufficient  to  show  merely 
that  the  wrong  part}'  had  begun,  but  that 
some  injustice  had  been  done  in  conse- 
quence. iSee  Edwards  v.  Matthews,  11 
Jur.  3'J8.  See  also  Geach  v.  Ingall,  9  Jur. 
691 ;  14  M.  &  W.  95.  [In  Page  v.  Os- 
good, 2  Gray,  2G0,  the  question  arose,  who 
should  have  the  opening  and  close  to  the 
jury,  the  defendant  admitting  the  plain- 
tiff's cause  of  action,  and  the  onh'  issue 
being  on  the  detenilant's  declaration  in 
set-off;  which  demand  in  set-off  the  stat- 
ute provides  "  shall  be  tried  in  like  man- 
ner as  if  it  had  been  set  forth  in  an  action 
brought  by  him,"  and  there  being  a  uni- 
form rule  of  court  giving  tlie  right  of 
o])ening  and  closing  in  all  cases  to  the 
plaintiff.  The  court  held  that  there  was  no 
reason  for  departing  from  the  rule  which 
had  been  found  to  be  of  great  practical 
convenience,  and  overruled  the  excep- 
tions, thus  sustaining  the  plaintiff's  right 
in  such  a  case  to  open  and  close.]  [*It 
seems  to  have  been  considered,  in  some  of 
the  American  states,  that  in  actions  like 
slander,  where  the  defendant  admits  the 


CHAP.  III.] 


THE   BURDEN    OF   PROOF. 


01 


which  govern  in  proceedings  at  common  Uiw.  Thus,  in  the  prolate 
of  a  u< ill,  as  the  real  qncstion  is,  whether  tliere  is  a  valid  will  or 
not,  the  executor  is  considered  as  holding  the  aOirniative ;  and 
therefore  he  ojjcns  and  closes  the  case,  in  whatever  state  or  condi- 
tion it  may  be,  and  whether  the  question  of  sanity  is  or  is  not 
raised.  1 

§  78.  To  this  general  rule,  that  the  burden  of  proof  is  on  the 
party  holding  the  affirmative,  there  are  some  exceptiom^  in  which 
the  proposition,  though  negative  in  its  terms,  must  be  proved  l)y 
the  party  Avho  states  it.  ^  One  class  of  these  exceptions  will  be  found 
to  include  those  cases  in  which  the  plaintiff  (/rounds  Ms  right  of 
action  upon  a  negative  allegation,  and  where,  of  course,  the  establish- 
ment of  this  negative  is  an  essential  element  in  his  case  ;  ^  as,  for 
example,  in  an  action  for  ha\^ing  prosecuted  the  plaintiff  maliciously 
and  without  probable  cause.  Here,  the  want  of  probable  cause 
nmst  be  made  out  by  the  plaintiff,  by  some  affirmative  proof,  though 
the  proposition  be  negative  in  its  terms.^  So,  in  an  action  by 
husband  and  wife,  on  a  promissory  note  made  to  the  wife  after 
marriage,  if  the  defendant  denies  that  she  is  the  meritorious  cause 
of  action,  the  burden  of  proving  this  negative  is  on  him.*  So,  in 
a  prosecution  for  a  penalty  given  by  statute,  if  the  statute,  in 
describing  the  offence,  contains  negative  matter,  the  count  must 
contain  such  negative  allegation,  and  it  must  be  supported  by 
prima  facie  proof.  Such  is  the  case  in  prosecutions  for  penalties 
given  by  statutes,  for  coursing  deer  in  enclosed  grounds,  not  having 


4^ 


speaking  of  the  words,  and  offers  evidence 
in  justitication,  or  even  in  niiti>;ation  of 
damages,  that  lie  is  entitled  to  o])en  the 
case.  Ganl  v.  Fleming,  10  Ind.  'lb.  Bnt 
that  proposition  is  certainly  not  maintain- 
able, since  the  plaintiff  is  still  entitled  to 
give  evidence  of  facts  showing  sjiecial 
malice,  in  aggravation  of  damages,  and  to 
open  the  case  generally  npon  the  question 
of  damages.  The  English  form  of  ex- 
pression npon  this  jioint,  will  go  far  to  in- 
dicate the  precise  inqnirj^  upon  which  the 
right  shonltl  turn.  The  inquiry  tliere  is, 
which  party  has  the  right  "to  begin'"? 
And  that  will  determine  where  the 
right  to  close  rests.  The  party  first  re- 
quired to  give  proof  has  the  opening  and 
the  general  close;  the  other  party  being 
required  to  give  all  his  evidence,  both  in 
reply  to  plaintiff's  case  and  support  of  his 
own,  at  one  time,  leaving  the  general  re- 
ply to  the  other  i)arty.] 

1  Buckminster  D.  Terry,  4  Mass.  593; 


Brooks  V.  Barrett,  7  Pick.  94 ;  Comstock 
V.  Hadlyme,  8  Conn.  254 ;  Ware  v.  "Ware, 

8  Greenl.  42;  Hubbard  v.  Hubbard,  6 
Mass.  397.  [Crowninshield  i;.  Crowniu- 
shicld,  2  Gray,  524,  528.] 

■^  1  Chitty  on  PI.  20G ;  Spiers  v.  Parker, 
1  T.  R.  141 ;  Rex  r.  Pratten,  G  T.  R.  559 ; 
Holmes  v.  Love,  3  B.  &  C.  242 ;  Lane  v. 
Crombie,  12  IMck.  177;  Harvey  v.  Tow- 
ers, 15  Jur.  544 ;  4  Eng.  Law  &  Eq.  Rep. 
531.  [*^Ir.  Taylor,  Ev.  §  339,  states 
the  rule  to  be,  that  where  the  affirmative 
is  supported  by  a  disputable  presumi>tion 
of  law,  the  party  supporting  the  negative 
must  call  witnesses,  in  the  first  instance,  to 
overcome  this  presiunption.] 

'^  Purcell  V.  Macnamara,  1  Campb.  199  ; 

9  East,  3(')1,  s.  c. ;  Ulmer  ;-.  Leiand,  1 
Greenl.  134;  Gibson  v.  Waterhouse,  -4 
Greenl.  22(j. 

*  Philliskirk  v.  Pluckwell,  2  JL  &  S. 
395 ;  per  Bayley,  J. 


92  LAW   OP   EVIDENCE.  [PART  II. 

the  consent  of  the  owner ;  ^  or  for  cutting  trees  on  lands  not  the 
party's  own,  or  taking  other  property,  not  having  the  consent  of 
the  owner ;  ^  or  for  selling,  as  a  peddler,  goods  not  of  the  produce 
or  manufacture  of  the  country  ;3  or,  for  neglecting  to  prove  a  will, 
without  just  excuse  made  and  accepted  by  the  Judge  of  Probate 
therefor.''  In  these,  and  the  like  cases,  it  is  obvious,  that  plenary 
j)roof  on  the  part  of  the  affirmant  can  hardly  be  expected ;  and, 
therefore,  it  is  considered  sufficient  if  he  offer  such  evidence  as,  in 
the  absence  of  counter  testimony,  would  afford  ground  for  presum- 
ing that  tlic  allegation  is  true.  Thus,  in  an  action  on  an  agree- 
ment to  pay  XlOO,  if  the  i)laiiitiff  would  not  send  herrings  for  one 
year  to  the  London  market,  and,  in  particular,  to  the  house  of  J.  & 
A.  Millar,  ])roof  that  he  sent  none  to  that  house  was  held  sufficient 
to  entitle  him  to  recover,  in  the  abse^ice  of  opposing  testimony.^ 
And  generally,  where  a  party  seeks,  from  extrinsic  circumstances 
to  give  effect  to  an  instrument  which,  on  its  face,  it  would  not 
have,  it  is  incumbent  on  him  to  prove  those  circumstances,  though 
involving  the  proof  of  a  negative ;  for  in  the  absence  of  extrinsic 
proof,  the  instrument  must  have  its  natural  operation,  and  no  other. 
Therefore,  where  real  estate  was  devised  for  life  with  power  of 
appointment  by  will,  and  the  devisee  made  his  will,  devising  all 
his  lands,  but  without  mention  of  or  reference  to  the  power,  it  was 
held  no  execution  of  the  power,  unless  it  should  appear  that  he 
had  no  other  lands ;  and  that  the  burden  of  showing  this  negative 
w^as  upon  the  party  claiming  imder  the  will  as  an  appointment.^ 

§  79.  But  where  the  subject-matter  oi_  a  negative  avormeiit  lies 
peculiarly  tvithin  the  hiotvledge  of  the  other  party,  the  averment  is 
takeii^^as  true,  unless  disproved  by, that  party.  Such  is  the  case  in 
civil  or  criminal  prosecutions  for  a  penalty  for  doing  an  act  which 
the  statutes  do  not  permit  to  be  done  by  any  persons,  except  those 
who  are  duly  licensed  therefor ;  as,  for  selling  liquors,  exercising 
a  trade  or  profession,  and  the  like.  Here  the  party,  if  licensed, 
can  immediately  show  it,  without  the  least  inconvenience  ;  whereas, 

1  Rex  V.  Ropers,  2  Campb.  654 ;  Rex  Williams  v.  Ilinsliam  and  Quincy  Turn- 

V.  Jarvis,  1  East,  (543,  note.  pike  Co.  4  Pick.   341 ;    Kex  v.  Stone,  1 

•■^  Little  V.  Thompson,  2  Greenl.  128;  East,  637;  Rex  v.  Bunlitt,  4  B.  &  Aid.  <J5, 

Rex  V.  Hazy  et  uL,  2  C.  &  P.  458.  140 ;    Rex  v.    Turner,   5   M.   &    S.   206 ; 

'^  Commonwealth  v.    Samuel,  2  Pick.  Woodbury  v.  Frink,  14  lU.  279. 
103.  5  Calcler  ;-.  Kutherlbrd,  3  B.  &  B.  302; 

*  Smith  V.  Moore,  6  Greenl.  274.     See  7  Moore,  158,  s.  c. 
other  examples  in  Commonwealth  r.  Max-  ^  Doe  v.  Johnson,  7  Man.  &  Gr.  1047. 

well,  2  Pick.  139 ;  1  East,  P.  C.  16G,  §  15 ; 


CHAP.  III.] 


THE    BURDEN    OF    PROOF. 


93  'K- 


if  proof  of  the  negative  were  required,  the  inconvenience  would 
be  very  great.^ 

§  80.  So,  where  the  negative  allegation  involves  a  charge  of 
criminal  neglect  of  duty,  whether  oflicial  or  otherwise  ;  or  fraud ; 
or  the  wrongful  violation  of  actual  lawful  possession  of  property ; 
the  party  making  the  allegation  must  prove  it ;  for  in  these  cases 
the  presimiption  of  law,  which  is  always  in  favor  of  innocence, 
and  quiet  possession,  is  in  fiivor  of  the  party  charged.  Thus,  in  an 
information  against  Lord  Halifax,  for  refusing  to  deliver  up  the 
rolls  of  the  auditor  of  the  Exchequer,  in  violation  of  his  duty,  the 
prosecutor  was  required  to  prove  the  negative.  So,  where  one  in 
office  Avas  charged  with  not  having  taken  the  sacrament  within  a 
year ;  and  where  a  seaman  was  charged  with  having  quitted  the 
ship,  without  the  leave  in  writing  required  by  statute  ;  and  where  a 
shipper  was  charged  with  having  shipped  goods  dangerously  com- 
bustible on  board  the  plaintiff's  ship,  without  giving  notice  of  their 
nature  to  any  officer  on  board,  whereby  the  ship  was  burned  and 
lost ;  in  each  of  these  cases,  the  party  alleging  the  negative  was 


feu 


1  Rex  V.  Turner,  5  ^M.  &  S.  206  ;  Smith 
V.  Jeffries,  9  Trice,  257  ;  Sheldon  v.  dark, 

1  Johns.  513  ;   United  States  c.  Ilayward, 

2  Gall.  485 ;  Gening  v.  The  State,  1  INIc- 
Cord,  573 ;  Commonwealth  v.  Kimball,  7 
Met.  304  ;  Harrison's  case,  Paley  on  Conv. 
45,  n. ;  Apothecaries'  Co.  v.  Bentle3%  Ky. 

6  Mood.  159;  Haskill  v.  The  Comraou- 
wealth,  3  B.  Monr.  342;  The  State  v. 
Morrison,  3  Dev.  299  ;  The  State  v.  Crow- 
ell,  12  Shepl.  171 ;  Shearer  v.  The  State, 

7  Blackf.  99.  By  a  statute  of  Massachu- 
setts, 1844,  ch.  102,  the  burden  of  proving 
a  license  for  the  sale  of  liquors  is  express- 
ly devolved  on  the  person  selling,  in  all 
prosecutions  for  selling  liquors  without  a 
license.  [See  also  Commonwealth  r.  Thur- 
low,  24  Pick.  374,  381,  which  was  an 
indictment  against  the  defendant  for 
presuming  to  be  a  retailer  of  spirituous 
liquors  without  a  license  therefor.  In  this 
case  the  court  did  not  decide  the  general 
question,  saying  that  "  cases  may  be  af- 
fected by  special  circumstances,  giving 
rise  to  distinctions  apjilicable  to  tliem  to  be 
considered  as  they  arise,"  but  held  under 
that  indictment  that  the  govenmient  must 
produce  prima  facie  evidence  that  the  de- 
fendant was  not  licensed.  See  jwst,  vol. 
8.  §  24  and  note.  In  Commonwealth  v. 
Kimball,  7  Met.  304,  the  court  held,  in  a 
similar  indictment,  that  the  docket  and 
minutes  of  the  county  connnissioners 
before  their  records  are  made  up,  are  com- 


petent evidence,  and  if  no  license  to  the 
detendant  appears  on  such  docket  or  min- 
utes (tlie  county  commissioners  being  the 
sole  authority  to  grant  licenses),  it  is  pri- 
ma fade  evidence  that  the  defendant  was 
not  licensed. 

It  has  been  decided  that  the  provisions 
of  the  Massachusetts  Act  of  1844,  ch.  102, 
do  not  ajiply  to  indictments  under  the  law 
of  1855,  ch.  405,  which  enacts  that  all 
buildings,  &c.,  used  for  the  illegal  sale  or 
keeping  of  intoxicating  ^quors,  shall  be 
deemed  common  nuisances;  —  an  Act  of 
the  same  year  (Acts  1855,  ch.  215),  mak- 
ing any  sale  or  keeping  for  sale,  witiiin  the 
state,  of  intoxicating  liquors  unless  in 
the  original  i)ackages,  &c.,  without  au- 
thority, an  unlawful  and  criminal  act. 
Tills  was  decided  in  Connnonwealth  c. 
Lahey,  S.  J.  C.  Berkshire,  Sept.  T.  Ib57, 
not  j-et  reported  ;  —  which  was  an  indict- 
ment imder  the  Act  of  1855,  ch.  405,  for 
maintaining  a  connnon  nuisance  in  keep- 
ing a  building  used  for  the  illegal  sale  t)f 
intoxicating  li(iuors.  The  court  below 
ruled  that  the  government  need  not  show 
that  the  defendant  was  not  licensed,  but  if 
the  defendant  relied  on  a  license  to  sell  in 
his  defence,  he  should  show  that  fact. 
The  Supreme  Judicial  Com-t  sustained 
the  exceptions  to  this  ruling.  See  note  of 
the  decision  in  this  case  in  20  Law  Ke- 
porter  (Oct.  1857),  3u2J. 


94 


LAW    OF   EVIDENCE. 


[part  II. 


required  to  prove  it.^  So,  where  the  defence  to  an  action  on  a 
policy  of  insurance  was,  that  the  i)hiintitr  improperly  concealed 
from  the  underwriter  certain  lacts  and  information  which  he  then 
already  knew  and  had  received,  it  was  held  that  the  defendant  was 

/bound  to  give  some  evidence  of  the  non-connnunication.^  So,  where 
the  goods  of  the  plaintilf  arc  seized  and  taken  out  of  his  possession, 
though  for  an  alleged  forfeiture  under  the  revenue  laws,  the  seizure 
is  presumed  unlawful  until  proved  otherwise.^ 

§  81.  So,  where  infancy  is  alleged  ;^  or,  where  one  boj-n  in  law- 
ful wedlock  is  alleged  to  be  illegitimate,  the  parents  not  being 
separated  by  a  sentence  of  divorce  ;  ^  or,  where  insanity  is  alleged  ;  ^ 

•  or,  a  person  once  living  is  alleged  to  be  dead,  the  presumption  of 
life  not  being  yet  worn  out  by  lapse  of  time  ; "'  or,  where  nonfeasance 
or  negligence  is  alleged,  in  an  action  on  contract ;  ^  or,  where  the 


1  United  States  v.  Hayward,  2  Gall. 
498;  llartwell  v.  Root,  19  Johns.  345; 
Bull.  j\.  i'.  ['iJi^] ;  liex  V.  Hawkins,  10 
East,  211;  Frontine  v.  Frost,  3  B.  &  P. 
302;  Williams  v.  E.  India  Co.  3  East, 
192.  See  also  Commonwealth  v.  Stow,  1 
Mass.  54 ;  Evans  v.  Birch,  3  Campb.  10. 
[So  in  an  action  against  an  officer  tor  neg- 
lecting to  attacii  property  as  the  property 
of  tiie  plaintiff's  debtor,  tlie  burden  of 
proving  tliat  the  property  was  so  far  tlie 
debtor's  as  to  be  lialjle  to  attachment  as 
his,  is  upon  the  plaintiff  througiiont,  al- 
though tlie  defendant  claims  tlie  title  to 
himself  under  a  imrchase  from  tlie  debtor. 
Phelps  V.  Cutler,  4  Gray,  139.] 

2  Elkin  V.  Jauson,  13  M.  &  W.  655. 

3  Aitclieson  v.  JSIaddock,  Peake's  Cas. 
162.  An  exception  to  this  rule  is  admit- 
ted in  Chancery,  in  the  case  of  attorney 
and  client ;  it  being  a  rule  there,  that  if 
the  attorney,  retaining  the  connection, 
contracts  with  his  client,  he  is  subject  to 
the  burden  of  proving  that  no  advantage 
lias  been  taken  of  the  situation  of  the  lat- 
ter. 1  Story,  Eq.  Jur.  §  311 ;  Gibson  (;. 
Jeves,  0  Ves.  278 ;  Cane  v.  Ld.  Allen,  2 
Dow,  289,  294,  299.  [So  in  trespass 
brought  by  the  owner  of  land  against  a 
railroad  corporation,  where  the  plaintiff 
has  shown  his  title  to  the  land,  the  entry 
by  tlie  defendants  and  the  construction  of 
their  road  upon  it,  the  defendants  must  jus- 
tify by  showing  that  this  land  is  covered  hy 
the  authorized  location  of  their  road.  Ila- 
zen  V.  Boston  &  Maine  B.  II.  2  Gray,  574, 
579.  Where  such  land  is  shown  or  ad- 
mitted to  be  so  covered  by  the  location, 
the  burden  does  not  rest  on  the  corpora- 
tion or  its  servants,  to  siiow  that  acts  done 


on  such  land,  as  cutting  down  trees,  were 
done  for  the  purposes  of  the  road.  Brain- 
ard  V.  Clapp,  10  Cusli.  6.  So  every  im- 
prisonment of  a  man  is,  ^rimd  fade,  a  tres- 
pass ;  and  in  an  action  to  recover  damages 
therefor,  if  the  imprisonment  is  proved  or 
admitted,  the  burden  of  justifying  it  is  on 
the  (U-feiidant.  Metcalf,  J.,  in  Bassett  v. 
Porter,  10  Cash.  420.1 

■*  Borthwick  v.  Carruthers,  1  T.  R. 
G48. 

s  Case  of  the  Banbm-y  Peerage,  2  Selw. 
N.  P.  (by  Wheaton)  558;  Morris  v.  Da- 
vies,  3  Car.  &  P.  513. 

"  Attorney-Gen.  ?".  Parnther,  3  Bro.  C. 
C.  441,  443,  per  Lord  Tliurlow  ;  cited  with 
approbation  in  White  v.  Wilson,  13  Ves. 
87,  88  ;  Hoge  v.  Fisher,  1  Pet.  C.  C.  R. 
163. 

7  Throgmorton  v.  Walton,  2  Roll.  R. 
461 ;  Wilson  v.  Hodges,  2  East,  313 ;  su- 
pra, §  41. 

»  Crowley  v.  Page,  7  C.  P.  790 ;  Smith 
V.  Davies,  Id.  307 ;  Clarke  v.  Spence,  10 
Watts,  R.  335 ;  Storv  on  Bailm.  tj§  -15^, 
457,  note  (3d  edit.) ;  Brind  r.  Dale.  8  C. 
&  P.  207.  See  further,  as  to  the  right  to 
begin,  and,  of  course,  tlie  b,urden  of  jiroof, 
Pontifex  v.  Jolly,  9  C.  &  P.  202;  HaiMiett 
?».  Johnson,  Id.  206  ;  Aston  v.  Perkcs,  Id. 
231 :  Gsborn  '•.  Thomi)son,  Id.  337  ;  Bing- 
ham V.  Stanley,  Id.  374  ;  Lambert ;;.  Hale, 
Id.  506  ;  Lees  v.  Iloflstadt,  Id.  599  ;  Chap- 
man V.  Emden,  Id.  712  ;  Doe  v.  Rowlands, 
Id.  734;  Ridgway  v.  Ewliank,  2  M  & 
Rob.  217  ;  Hudson  v.  Brown,  8  C.  &  P. 
774  ;  Soward  v.  Leggatt,  7  C.  &  P.  613; 
Bowles  y.  Neale,  Id.  262;  Richardson  v. 
Fell,  4  Dowl.  10;  Silk  v.  Humphrey,  7  C. 
&  P.  14. 


CHAP.  III.]  THE   BURDEN    OF   PROOF.  95 

want  of  a  clue  stamp  is  alleged,  there  being  faint  traces  of  a  stanij) 
of  some  kind  ;  *  or,  where  a  failure  of  consideration  is  set  up  l)y  th(i 
plaintiff,  in  an  action  to  recover  the  money  paid ;  ^  or,  where  the 
action  is  founded  on  a  deficiency  in  the  quantity  of  land  sold,  and 
the  defendant  alleges,  in  a  special  plea,  that  there  was  no  defi- 
ciency ;  ^  the  burden  of  proof  is  on  the  party  making  the  allegation,  J 
notwithstanding  its  negative  character. 

[  §  81rt.  Ill  actions  upon  promissory  notes  or  bills  of  exchange,  if  it  be  sliown  that 
they  were  stolen,  or  otherwise  fraudulently  put  in  circulation,  the  burden  of  proof  is 
on  the  holder  to  show  that  he  took  them  in  good  faith.  Monroe  v.  Cooper,  5  Pick. 
412;  Worcester  Co.  Bank  v.  Dorchester,  &c.  Bank,  10  Cush.  488,  491 ;  Wyer  v.  Dor- 
chester, &c.  Bank,  11  Cush.  52 ;  Bissell  v.  IVI organ,  lb.  198  ;  Fahens  v.  Tirrell,  15  Law 
lieporter  (Maj-,  1852),  44 ;  Perrin  v.  Noyes,  39  Maine,  884 ;  Goodman  v.  Harvey,  4 
Ad.  &  El.  870 ;  Arbouru  v.  Anderson,  1  Ad.  &  El.  N.  11.  504.  According  to  recent 
decisions,  that  burden  is  very  light.  Worcester  Co.  Bank  r.  Dorchester,  &c.  Bank  ; 
Wyer  v.  Dorchester,  &c.  Bank,  iibi  supra.  But  where  the  action  is  liy  the  holder  of  a 
bank-bill,  and  the  defendant  proves  it  to  have  been  stolen,  the  plaintiff  is  not  bound  to 
show  how  he  came  by  the  bill,  to  enable  him  to  recover  upon  it,  but  the  defendants,  to 
defeat  the  plaintiff's  right  to  recover  upon  it,  must  show  that  he  received  it  under  such 
circumstances  as  to  prevent  the  maintenance  of  his  action.  Wyer  v.  Dorchester,  &c. 
Bank,  ubi  supra ;  Solomons  v.  Baidc  of  England,  13  East,  13.5,  note ;  De  la  Chaumette 
V.  Bank  of  England,  2  Barn.  &  Adolph.  385. 

§  816.  It  would  seem  to  be  the  true  rule  in  crimmal  cases,  though  there  are  some 
decisions  to  tlie  conti'ary,  that  the  burden  of  proof  never  shifts,  but  that  it  is  upon 
the  government  throughout ;  and  that  in  all  cases,  before  a  conviction  can  be  had,  the 
jury  must  be  satisfied,  upon  all  the  evidence,  beyond  a  reasonable  doubt,  of  the  af- 
firmative of  the  issue  presented  by  the  government,  to  wit,  that  the  defendant  is  guilty  in 
manner  and  form  as  charged  in  the  indictment.  The  opinion  of  the  court,  by  Bige- 
low,  J.,  in  the  case  of  Commonwealth  i'.  Mclvie,  1  Gray,  61-65,  contains  an  accept- 
able and  very  able  exposition  of  the  general  rule  of  law  as  to  the  bm-den  of  proof  iii 
criminal  cases,  but  it  is  too  extensive  to  be  here  inserted. 

§  81r.  Although  the  above  decision  is  carefully  limited  to  that  precise  case,  yet  it 
would  seem  that  its  principle  would  cover  all  cases,  including  those  in  which  the  de- 
fendant relies  on  some  distinct  substantive  ground  of  defence  not  necessarily  connected 
with  the  transaction  on  which  the  indictment  is  founded,  as  insanity  for  instance.  For  in 
every  case  the  issue  which  the  government  presents  is  the  guilt  of  the  defendant,  and 
to  prove  this  the  jury  must  be  satisfied  not  only  that  the  defendant  committed  the  act 
constituting  the  corpus  delicti,  but  also  that  at  the  time  of  the  commission  thereof,  he 
liad  intelligence  and  capacity  enough  to  have  a  criminal  intent  and  purpose;  because, 
"  if  his  reason  and  mental  powers  are  either  so  deficient  that  lie  has  no  will,  no  con- 
science or  controlling  mental  power,  or  if,  through  the  overwhelming  violence  of  men- 
tal disease,  his  intellectual  power  is  for  the  time  obliterated,  he  is  not  a  responsible 
moral  agent,  and  is  not  punishable  for  criminal  acts."  By  Shaw,  C.  J.,  in  Common- 
wealth V.  Rogers,  7  Met.  501 ;  see  Commonwealth  v.  Hawkins,  3  Gray,  465 ;  1  Ben- 
nett &  Heard's  Lead.  Crim.  Cases,  87,  note  to  Commonwealth  v.  Rogers,  and  p.  347, 

1  Doe  V.  Coomlies,  3  Ad.  &  El.  n.  s.  ^  McCrea  v.  Marshall,  1  Louis.  An. 
687.  R.  29. 

2  Treat  v.  Orono,  13  Shepl.  217. 


96  LAW   OF   EVIDENCE.  [PART   II. 

note  to  Commonwealth  v.  MeKie.  And  if  the  burden  is  on  the  government  thus  to 
satisfy  the  jury,  it  is  difficult  to  see  why  the  rule  of  proof  beyond^  reasonable  doubt 
does  not  apply ;  and  why  a  reasonable  doubt  of  the  sanity  of  the  defendant  should 
not  require  the  jury  to  acquit. 

In  the  more  recent  case  of  Commonwealth  v.  Edd}',  7  Gra}',  583,  which  was  an  in- 
dictment against  the  defendant  for  the  murder  of  his  wife,  and  in  which  the  insanity  of 
the  defendant  was  pressed  to  the  jury  as  a  defence,  the  court  instructed  the  jury  in 
substance  that  the  burden  of  proof  was  on  the  government  tliroughout,  and  did  not 
sliift ;  although,  so  far  as  the  sanity  of  the  defendant  was  concerned,  the  burden  was 
sustaineil  by  the  legal  presumption  that  all  men  are  sane,  which  presumption  must 
stand  until  rebutted  by  proof  to  the  contrary,  satisfactory  to  the  jiuy. 


CUAP.  IV.]  THE   BEST   EVIDENCE.  97 


CHAPTER   IV. 

OF    THE    BEST    EVIDENCE. 

[  *  §  82.  The  best  class  or  kind  of  evidence,  in  the  power  of  the  party,  must  be  pro- 
duced. 
83  and  92.  But  proof  that  one  acted,  and  was  recognized  as  an  officer,  will  be  suf- 
ficient. 

84.  Evidence  is  primary  and  secondary.     Distinction  considered. 

85.  This  distinction  has  reference  to  the  substitution  of  oral  for  written  evidence. 

86.  Where  the  law  requires  a  transaction  to  be  by  writing,  it  cannot  be  proved 

by  other  evidence. 

87.  AH  contracts  reduced  to  writing,  when  directly  in  issue,  must  be  produced. 

88.  All  writings  material  to  the  issue  or  the  credit  of  witnesses  must  be  produced. 

89.  But  where  the  writing  is  collateral  merely,  its  production  is  not  required. 

90.  Writings  merely  suppletory,  or  not  admissible  for  want  of  a  stamp,  do  not  ex- 

clude oral  proof.     All  the  impressions  of  same  type,  originals. 

91.  Records  and  public  documents  proved  by  examined  copies. 

93.  General  results  from  volimiinous  documents  may  be  proA^ed  orally. 

94.  Inscriptions  on  monuments  proved  orally. 

95..  In  examinations  on  voir  dire,  documents  need  not  be  produced. 
96.  The  party's  admission  of  the  existence  of  a  writmg  admissible,  but  not  as  to 
its  nature. 

96.  The  rule  carried  further  in  some  cases.    No  restriction  upon  cross-examina- 

tion. 

97.  Numerous  apparent  exceptions  to  the  foregoing  rule.] 

§  82.  A  FOURTH  RULE,  wliicli  governs  in  the  production  of 
evidence,  is  that  which  requires  the  best  evidence  of  which  the  case 
in  its  nature  is  suscejjtible.  This  rule  does  not  demand  the  great- 
est amount  of  evidence  which  can  possibly  be  given  of  any  fact ; 
but  its  design  is  to  prevent  the  introduction  of  any,  whicli,  from 
the  nature  of  the  case,  supposes  that  better  evidence  is  in  the 
possession  of  the  party.  It  is  adopted  for  the  prevention  of  fraud  ; 
for  when  it  is  apparent  that  better  evidence  is  witliheld,  it  is  fair 
to  presume  that  the  party  had  some  sinister  motive  for  not  pro- 
ducing it,  and  that,  if  offered,  his  design  would  be  frustrated.^ 
The  rule  thus  becomes  essential  to  the  pure  administration  of 
justice.     In  requiring  the  production  of  the  best  evidence  appli- 

1  Falsi  prsesumptio  est  contra  cum,  qui    mentis  probare  potest.    Menoch.  Consil. 
testibus  probare   conatur  id  quod  instru-     422,  n.  125. 

VOL.  1.  9 


98  LAW   OF  EVIDENCE.  [PART  H. 

cable  to  each  particular  fact,  it  is  meant,  that  no  evidence  shall 
be  received  Avhich  is  merely  substitutionary  Tii  its  nature,  soHiong 
as  the  original  evidence  can  be  had.  The  rule  excludes  only  that 
evidence  Avhicli  itself  indicates  the  existence  of  more  original 
sources  of  information.     But  where  there  is  no  substitution  of 


evidence  but  only  a  selection  of  weaker,  instead  of  stronger  proofi^ 
or  an  omission  to  supj)ly  all  the  proofs  ca])able  of  being  produced, 
tKende  is  not  infringed^^  ThusTa  title  by  dce*cl  nuut  be  proved 
IjiyTtie  production  of  the  deed  itself,  if  it  is  Avithin  the  power  of 
the  party ;  for  this  is  the  best  evidence  of  which  the  case  is  sus- 
ceptible ;  and  its  non-production  would  raise  a  presumption,  that 
it  contained  some  matter  of  apparent  defeasance.  But,  being 
produced,  the  execution  of  the  deed  itself  may  be  proved  by  only 
one  of  the  subscribing  witnesses,  though  the  other  also  is  at  hand. 
And  even  the  previous  examination  of  a  deceased  subscribing 
witness,  if  admissible  on  other  grounds,  may  supersede  the  neces- 
sity of  calling  the  survivor.^  So,  in  proof  or  disproof  of  hand- 
writing, it  is  not  necessary  to  call  the  supposed  writer  himself.^ 
And  even  where  it  is  necessary  to  prove  negatively,  that  an  act 
was  done  without  the  consent,  or  against  the  Avill  of  anotlier,  it  is 
not,  in  general,  necessary  to  call  the  person  whose  will  or  consent 
is  denied,* 

§  88.  All  rules  of  evidence,  however,  are  adopted  for  practical 
purposes  in  the  administration  of  justice  ;  and  must  be  sO  applied 
as  to  promote  the  ends  for  which  they  were  designed.  Thus,  the 
rule  under  consideration  is  subject  to  exceptions,  where  the  general 
convenience  requires  it.  Proof,  for  example,  that  an  individual 
has  acted  notoriously  as  a  puljlic  officer,  is  prima  facie  evidence 
of  his  official  character,  without  producing  his  commission  or 
appointment.^ 

1  Phil.  &  Am.  on  Evid.  4?.8  :  1   Phil.  352,  307  ;  Rex  ;•.  Gordon,  2  Lonch.  Cr.  C. 

Evi(1.418;  1  Stark.  Evid.  4:57;  (ihijistbrd  581,585,586;  Kox  r.  Sliollcy,  Iil.  :581,  n. ; 

on   Evid.    2G6-278  ;    Tavloe    v.    Kig<rs,  1  Jacob  v.  United  Slates,  1   Brockenb.  520 ; 

Peters,  591,  596;  United  States  iC  Hey-  Milnor  v.  Tiilotson,  7  Peters,   100,  101; 

bum,  G  Peters,  352,  367  ;  Minor  v.  Tillot^  Berrynian  v.  Wise,  4  T.  11.  3(')6  ;  Bank  of 

son,  7  Peters,  100,  101  ;  [  *  Shoenbergher  U.   States  v.  Dandridge,  12  Wheat.  70; 

r.  Hackinan,  37  Penn.  St.  887].  Doe  r.  Brawn,  5  B.  &  A.  243 ;  Caiinell  v. 

•'■  Wright  V.   Tatliam,  1  Ad.  &  El.  3.  Curtis,  2  IJing.   N.  C.  22S,  234 ;    Pex  v. 

[See //'/>'f,  §  569-575.]  Verelst,  3  Canijib.  432;  Bex  i'.  Howard, 

3  HuglieV  cascv  2  East,  P.    C.   1002 ;  1  M.  &  Hob.  187 ;  McGaliey  v.  Alston,  2 

MeGuire's  case,  lb.;    Rex  v.  Benson,    2  M.  &  W.  206,  211 ;  Kegina  y.  Vickery,  12 

Carapb.  508.  Ad.  &  El.  478,  n.  s.  ;   infra,  §  92.      But 

*  Suprn,  §  77 ;  Rex  v.  Hazy  &  Collins,  there  must  be  some  color  of  riglit  to  the 

2  C.  &  P.  458.  office,  or  an  acquiescence  on  the  part  of 

s  United  States  v.  Reyburn,  6  Peters,  the  public  for  such  length  of  time  as  will 


CHAP.  IV.] 


THE    BEST    EVIDENCE. 


99 


§  84.  This  rule  naturally  loads  to  the  division  GL-eVidence  into 
Primary  and  Secondary.  Primary  evidence  is  ih]}i  wliich  we  t^a^e 
■,iust  mentioned  as  the  best^HtlfiUCii,  or  that  kiiicl^of  proof  wi^jcb , 
under  any  possible  circumstances,  atTords  the  greatest  certeinty 
of  the  fact  in  (juestion  ;  and  it  is  illustrated  by  the  casfcf-a  written 
document;  the  instrument  itself  being  al\\;*"ays  regarded  as  tlie 
primary  or  liest  possible  evidence  of  its  existence -and  contents. 
If  the  execution  of  an  instrument  is  to  l)e  proved,  the  primary 
e%adence  is  the  testimony  of  the  subscribing  witness,  if  there  be 
one.  Until  it  is  shown  that  the  production  of  the  primary  evi- 
dence  is  out  of  the  party's  power,  no  other  proof  of  the  fact  is  in 
general"  adimttqd.^  'All  evidence  falling  short  bftliis  m  "its"  degree 
is  termed  secondary.  The  question,  whether  evidence  is  primary 
pr  secondaryj  has  reference  to  the  nature  of  the  case  in  the  abstract, 
and  not  to  the  peculiar  circumstances  under  which  the  party  in 
the  particular  cause  on  trial  may  be  placed.  It  is  a  distinction 
of  law,  and  not  of  fact ;  referring  only  to  the  quality,  and  not  to 
the  strength  of  the  proof.  Evidence  which  carries  on  its  face  no 
indication  that  better  remains  behind  is  not  secondary,  but 
primary.  And  though  all  information  must  be  traced  to  its 
source,  if  possible,  yet  if  there  are  several  distinct  sources  of 
information  of  the  same  fact,  it  is  not  ordinarily  necessary  to  show 
that  they  have  all  been  exhausted,  before  secondary  evidence  can 
be  resorted  to.^ 


authorize  the  presumption  of  at  least  a 
colorable  election  or  appointment.  Wil- 
cox V.  Smith,  5  Wend.  231,  234.  This 
rule  is  applied  only  to  public  offices. 
Where  the  ofhce  is  private,  some  proof 
must  be  ottered  of  its  existence,  and  of 
the  appointment  of  the  agent  or  incum- 
bent. Short  7-.  Lee,  1  Jac.  &  W.  4G4,  468. 
[  Where  a  note  was  indorsed  by  a  person 
as  president  of  an  incorporated  insurance 
company,  the  indorsee  may  prove  by  parol 
that  he  "acted  as  president,  and  need  not 
produce  the  records  of  the  company  to 
show  his  election.  Cabot  v.  Given,  45 
Maine,  144.J 

1  Sebree  v.  Dorr,  9  Wheat.  558,  563 ; 
Hart  r.  Yunt,  1  Watts,  253. 

-  Cuthush  V.  Gilbert,  4  S.  &  R.  555; 
United  States  r.  (iilbert,  2  Sumn.  19,  80, 
81 ;  Phil.  &  Am.  on  Evid.  440,  441 ;  1  Phil. 
Evid.  421.  Whether  the  law  recoonizes 
any  degrees  in  the  various  kinds  of  sec- 
ondary evidence,  and  requires  the  party 
offering  that  which  is  deemed  less  certain 


and  satisfactory  first  to  show  that  nothing 
better  is  in  his  power,  is  a  question  wliich 
is  not  yet  perfectly  settled.  On  the  one 
hand,  the  affirmative  is  urged  as  an  equi- 
table extension  of  the  principle  which 
postpones  all  secondary  evidence,  until  the 
absence  of  the  primary  is  accounted  for ; 
and  it  is  said  that  the  same  reason  which 
requires  the  production  of  a  writing,  if 
within  the  jiower  of  a  party,  also  requires 
that,  if  the  writing  is  lost,  its  contents 
shall  be  jiroved  b\-  a  copy,  if  in  existence, 
rarher  tlian  by  tlie  memory  of  a  witness 
who  has  read  it ;  and  that  the  secondary 
proof  of  a  lost  deed  ought  to  be  marshalled 
into,  first,  the  counterpart ;  secondly,  a 
copy  ;  thirdly,  the  abstract.  &.e. ;  and.  last 
of  all,  the  MK-morv  of  a  witness.  Ludlam, 
ex  dim.  Hunt.  Loffi,  R.  362.  On  the  other 
hand,  it  is  said  that  this  argument  for  the 
extension  of  the  rule  confounds  all  dis- 
tinction between  the  weight  of  evidence 
and  its  legal  admissibility ;  that  the  rule 
is  foimded  upon  the  natm'e  of  the  evidence 


100 


LAW    OF    EVIDENCE. 


[part  U. 


S  85.  The  ca^cs  which  most  frc(iucntly  call  for  the  application 
<.,f'i;}ie  rule  now'  liikder  con^^idcration,  arc  those  which  relate  to  the 


offerprt,  liul  not  upon  it*  vtr^!iijj:tli  or  weuk- 
iic'ss  ;  .111(1  that,  tu  carry  if  to  tliu  len^nli  of 
establishintc  iljL-Jirn(.'s  in  scc(.Mid.i,ry  evidence, 
as  tixeil  rules  ot'  law,  woil'd  Olteii  tend  to 
liie  siubversioii  >nf. justice,, and;  always  l)e 
]iroductive  of  inL-onyt-nien'.'t'.     If,   for  ex- 
ample, proof  of  theVxisteiice  -j^'an  abstract 
of  a  deed  will  exclude  oral  evidence  of  its 
contents,  this  proof  may  be  withheld  by 
the  adverse  party  until  the  moment  of 
trial,  and  tiie  other  side  be  defeated,  or  the 
cause  be  ^n-eatly  delayed ;   and  the  same 
mischief  may  be  repeated,  thnjugh  all  the 
ditterent  ile.ijrees  of  the  evidence.     It  is 
tlierefore  insisted,  that  the  rule  of  exclu- 
sion ouj,dU  to  be  restricted  to  such  evi- 
dence only,  as,  ujjon  its  face,  discloses  the 
existence'of  better  proof;  and  that,  Avliere 
the  evidence  is  not  of  this  nature,  it  is  to 
be  received,  notwithstanding    it   may  be 
shown  from  other  sources  that  the  party 
might  have  offered  that  wliich  was  more 
satisfactory  ;  leaving  the  weight  of  the  evi- 
dence to  be  judged  of  by  the  jury,  under 
iUI  the  circuinstances  of  the  case.     See  i 
Monthly  Law  ^Mag.  -JGo-'iTg.     Among  the 
cases  cited  in  support  of  the  affirmaliye 
side  of  the  question,  there  is  no  one  in 
which  this  particular  point  appears  to  have 
been  expressly  adjudgeil,  though  in  seve- 
ral of  them,  a's  in"  Sir  E.  Seymour's  case, 
10  Mod.  S  ;  Villiers  ( .  Villiers,  2  Atk.  71 ; 
liowlandson  v.  Wainwright,  1  IS'ev.  &  Per. 
8;  and  others,  it  has  been  passingly  ad- 
verted to  as  a  familiar  doctrine  of  the  law. 
•  On  the  other  hand,  the  existence  of  any 
degrees  in  secondary  evidence  was  doubted 
bv  Patterson,  J.,   in  Uowlandson  r.  Wain- 
Avright;  tacitly  denied  by  the  same  judge, 
in  Coyle  v.  Cole,  6  C.  &  P.  359,  and  by 
Parke,  J.,  in  Rex  v.  Fursey,  C.  &  P.  81 ; 
and  by  the  court,  in  Hex  v.  Hunt  et  nl.  3 
B.  &  Aid.  50(j ;  and  expressly  denied  by 
Parke,  J.,  in  Brown  v.  AVoodinan,  B  C.  & 
P.  'Mi.     See  also  Hall  v.  Ball,  3  Scott,  N. 
IL  577.     And  in  the  more  recent  case  of 
Doe  d.  Gilbert  i-.  Koss,  in  the  Exchequer, 
where  proper  notice  to  produce  an  original 
document  had  been  given  witliout  success, 
'it  was  hrhi  that  the  ])arty  giving  the  notice 
was  not  afterwards  restricted  as  to  the  na- 
ture of  the  secondary  evidence  he  would 
])roduce  of  the  contents  of  the  document ; 
an<l,  therefore,  having  offered  an  attesteil 
copy  of  the  deed  in  that  case,  which  was 
inadmissible   hi  itself  for  want  of  a  stamp, 
it  was  hild,  that  it  was  competent  for  liim 
to  abandon   that  mode    of  j)roof,  and    to 
resort  to  [)arol  testimony,  there  being  no 
degrees  in  secondary  evidence ;  for  when 
once  the  original  is  accounted  for,  any  .■>ec- 


ondary  evidence  whatever  may  be  resorted 
to  by  the  party  seeking  to  use  the  same. 
See  Doe  v.  l{()ss,  8  Dowl.  38'.t ;  7  M.  &  W. 
\{V1,  s.  c. ;  Doe  r.  Jack,  1  Allen,  4715,  483." 
The  American  doctrine,  as  deduced  trom 
various  authorities,  seems  to  be  this  ;  that 
if,  from  the  nature  of  the  case  itself,  it  is 
luanifest  that  a  more  satisfactory  kind  of 
secondary  evidence  exists,  the  party  will 
be  required  to  jiroduce  it;  but  that,  where 
the  nature  of  the  case  does  not  of  itself 
disclose  the  existence  of  such  better  evi- 
dence, the  objector  must  not  only  prove  its 
existence,  but  also  must  prove  that  it  was 
known  to  the  other  party  in  season    to 
have  been  produced  at  the  trial.     Thus, 
wliere  the  record  of  a  conviction  was  de- 
stroyed, oral  proof  of  its  existence  was 
rejectecl,  because  the  law  required  a  tran- 
script to  be  sent  to  the  Court  of  Exche- 
quer wliich  was  better  evidence.     Hilts  v. 
Colvin,  14  Johns.  182.     So,  a  grant  of  let- 
ters of  administration  was  j)resumed  afler 
proof,  from  the  records  of  various  courts, 
of  the  administrator's  recognition    there, 
and  his  acts  in  that  capacity.     Battles  v. 
Holley,  6  Greenl.  145.    And  where  the 
record  books  were  burnt  and  mutilated,  or 
lost,  the  clerk's  docket  and  the  journals  of 
the  judges    have   been  deemed   the  next 
best  evidence  of  the  contents  of  the  rec- 
ord.     Cook   V.   Wood,    1    McCord,    139; 
Lyons  v.  Gregory,  3  Hen.  &  IMunf.  237 ; 
Lowrv  ?■.  Cady,  4  "Vermont,  504  ;  Doe  r. 
Greenlee,  3  Hawks,  281.     In  all  these  and 
the  like  cases,  the  nature  of  the  fact  to  be 
proved  plainly  discloses  the  existence  of 
some   evidence  in  writing,   of  an  official 
character,   more   satisfactory   than    more 
oral  proof;  and  therefore  the  i)roduction 
of  such  evidence  is    demanded.      Such, 
also,  is  the  view  taken  by  Ch.  B.  Gilbert. 
See  Gilb.  Evid.  by  Loftl,  p.  5.     See  also 
Collins  v.  Maule,  8  C.  &  P.  502 ;  Evering- 
ham  I'.  Koundell,  2  M.  &  Bob.  138 ;  Har- 
vey V.  Thomas,  10  "VVatts,  03.     But  where 
there  is  no  ground  for  legal  presumption 
that  better  secondary  evidence  exists,  any- 
proof  is  ri'ceived,  which  is  not  inadmissi- 
ble by  other  rules  of  law  ;  unless  the  ob- 
jectiiig  i>arty  can  show  that  better  evidence 
was  ])reviously  known  to  the  other,  and 
'  might  have  been  produced ;  thus  subject- 
ing him,  by  positive  proof,  to  the  same 
imputation  of  fraud  which  the  law  itself 
])resumes,  when  primary  evidence  is  with- 
held.    Thus,  where  a  notarial  copy  was 
called  for,  as  the  best  evidence  of  the  con- 
tents of  a  lost  note,  the  court  held,  that  it 
was  sufficient  for  the  party  to  prove  the 
note  by  the  best  evidence  actually  in  his 


CHAP.  IV.] 


THE   BEST   EVIDENCE. 


101 


suhstitution  of  oral  for  toritten  evidence;  and  tlicy  may  be  arranged 

into  three  classes :   including  in  the  first  class  those  instruments 

K^'**i^?^h  the  law  requires  should  be  in  writing;  —  in  the  second, 

{^*   ^los^contracts  which  the  parties  have  put  in  writing ;  —  and  in 

'  i  ^^e*y^-d,  all  other  writings,  the  existence  of  which  is  disputed, 

\     and  gr  nch  are  material  to  the  issue 


€tl 


*  In  the  first  place,  oral  evidence  cannot  be  substitutet 
any^«(^rro?rfnrw'^cT7^7a?y"re^?/iVes  to  be  in  writing ;  such  as 
'*^co|(ip,  piiblic  documents,  official  examinatioiiSj  deedj^  of  _QoiivQ^- 
f  lands,  wills,  other  than  nuncupative,  promises  to  pay  the 
of  another,  and  other  writings  mentioned  in  the  Statute  of 
rauds.  In  all  these  cases,  the  law  having  required  that  the 
evidence  of  the  transaction  should  be  in  writing,  no  other  proof 
can  be  substituted  for  that,  as  long  as  the  writing  exists,  and  is 


power ;  and  that  to  require  a  notarial  copj% 
would  be  to  deiuand  that  of  the  existence 
of  which  there  was  no  evidence,  and  which 
the  law  would  not  ^jresume  was  in  the 
power  of  the  party,  it  not  being  necessary 
that  a  promissory  note  sliould  be  protested. 
Eenner  v.  the  Bank  of  Columbia,  9  Wheat. 
682,  587 ;  Denn  v.  McAlUster,  2  Halst. 
46,  53  ;  United  States  l-.  Britton,  2  ilason, 
464,  468.  But  where  it  was  proved  that  a 
copy  existed  of  a  note,  he  was  held  bound 
to  prove  it  by  the  copy.  2  IMason,  468. 
But  if  the  party  has  voluntarily  destroyed 
the  instrument,  he  is  not  allowed  to  prove 
its  contents  by  secondary  evidence,  until 
he  has  repelled  every  inference  of  a  frau- 
dulent design  in  its  destruction.  Blade  v. 
Noland,  12  Wend.  173.  So,  where  the 
subscribing  witness  to  a  deed  is  dead,  and 
his  handwriting  cannot  be  proved,  the  next 
best  evidence  is  proof  of  the  handwriting 
of  the  grantor,  and  this  is  therefore  re- 
quired. Clark  r.  Courtney,  5  Peters.  319. 
But  in  X(w  Yi'i/c,  proof  of  the  handwrit- 
ing of  the  witness  himself  is  next  de- 
manded. Jackson  r.  Waldron.  13  Wend. 
178.  See  infra,  §  575.  But  where  a  deed 
was  lost,  the  party  claiming  under  it  was 
not  held  bound  to  call  the  subscribing  wit- 
nesses, unless  it  could  be  shown  that  he 
previously  knew  who  they  were.  Jack- 
son V.  Vail,  7  Wend.  125.  So  it  was  ruled 
by  Lord  Ivenyon,  in  Keeling  v.  Ball, 
Peake's  Evid.  Ai)p.  Ixxviii.  In  (Jillics  i: 
Smither,  2  Stark  R.  528,  this  point  docs 
not  seem  to  have  been  considered  ;  but  the 
case  turned  on  the  state  of  the  pleadings, 
and  the  want  of  any  proof  whatever,  that 
the  bond  in  question  was  ever  executed 
by  the  intestate.  (*  This  rule  of  evi- 
dence does  not  require  proof  of  the  loss  of 


the  primary  evidence  beyond  possibility  of 
mistake;  but  only  to  a  moral  certainty.  Mr. 
Justice  Campbell  in  United  States  v.  Sut- 
ter, 21  How.  U.  S.  170,  175.  The  idea  is 
suggested  in  a  case  in  New  York,  Hub- 
bard V.  Russell,  24  Barb.  404,  that  two  let- 
ters written  at  the  same  time  to  the  same 
person,  one  being  the  exact  counterpart  of 
the  other,  may  both  be  regarded  as  origi- 
nals ;  and  where  one  is  sent,  and  the  other 
retahied,  that  the  latter  may  be  given  in 
evidence  witJiout  notice  to  ijroduce  the 
other.  That  might  be  true  if  the  fact  to 
be  proved  were  merely  the  writing  of  the 
letters.  But  where,  as  is  commonly  the 
case,  the  point  to  be  reached  is  the  send- 
ing or  receipt  of  the  letter  to  or  by  another, 
a  letter  not  sent  could  only  be  used  as  a 
copy.  And  if  the  letter  sent  was  in  fact- 
a  copy  of  that  retained  it  would,  by  the 
fact  of  being  used  for  tliat  purpose,  become 
the  original.  We  attemjited  to  illustrate 
this  point  in  Durkee  r.  Vermont  Central 
Railway,  29  Vt.  Rep.  127,  witli  reference 
to  contracts  created  by  telegraphic  corre- 
spondence. It  is  there  held,  that  where  a 
telegraphic  communication  is  relied  on  to 
estabhsh  a  contract,  it  must  be  proved  as 
other  writings  are,  by  the  production  of 
the  origimil.''  If  that  is  lost,  it  may  be 
proved  by  a  copy  if  there  is  one,  and  if 
there  is  not,  by  oral  testimony  respecting 
it.  The  original,  wiiere  the  person  to 
whom  it  is  sent  takes  the  risk  of  its  trans- 
mission, or  is  the  employer  of  the  tele- 
graph, is  tlie  message  delivered  to  the 
operator.  But  where  the  person  sending 
the  message  takes  the  initiative,  so  that 
the  telegraph  is  to  be  regarded  as  his 
agent,  the  original  is  the  message  actually 
dehvered  at  the  end  of  the  Une.] 


9* 


102  LAW   OF   EVIDENCE.  [PART   II. 

in  the  powor  of  the  party.     And  where  oaths  are  required  to  be 

taken  in  open  eourt,  where  a  record  of  the  oath  is  made,  or  before 

a  particular  officer,  whose  duty  it  is*  to  certify  it ;   or  whei-e  an 

appointment  to  an  additional  office  is  required  to  be  made  and 

certified  on  the  back  of  the  party's  former  connnission  ;  the  written 

evidence  must  be  produced.^     Even  the  admission  of  the  fact,  by 

II  i)arty,  unless  solemnly  made,  as  a  substitute  for  other  proof,^ 

dues  not  supersede  direct  proof  of  matter  of  record  by  which  it 

is  sought  to  affect  him ;  for  the  record,  being  produced,  may  be 

found   irregular   and  void,  and    the    party  might   be   mistaken.^ 

>  Where,  however,  the  record  or  document  appointed  by  law  is  not  ■ 

i  part  of  the  fact  to  be  proved,  but  is  merely  a  collateral  or  subse- 

^  (pient  memorial  of  the  fact,  such  as  the  registry  of  marriages  and 

;  births,  and  the  like,  it  has  not  this  exclusive  character,  but  any 

•  other  legal  proof  is  admitted.^ 

§  87.  In  the  second  place,  oral  proof  cannot  T'3e__substituted  Jor_ 
the  tvritten  evidence  of  aiiij  contract  ivhich  the  jjarties  have  2n(:tJjL. 
writiiici.  Here,  the  written  instrument  may  be  regarded,  in  some 
measure,  as  the  ultimate  fact  to  be  proved,  especially  in  the  cases 
of  negotiable  securities  ;  and  in  all  cases  of  written  contracts,  the 
writing  is  tacitly  agreed  upon,  by  the  parties  themselves,  as  the 
only  repository  and  the  appropriate  evidence  of  their  agreement. 
The  written_contract  is  not  collateral,  but  is  of  the  very  essence 
^  tiie  transaction.-^     If,  for  example,  an  action  is  brought  for  use 

1  Kex  V.  Iluhe,  Peake's  Cas.  132 ;  Bas-  r.Wyant,  3  H.  &  McII.  393 ;  2  Stark.  Evid. 
sett  V.  Marsliall,  it  Mass.  312;  Tripp  v.  571;  Ixcx  f.  Allison,  R.  &  R.  lO'J ;  Read 
Garey,  7  Greonl.  2f)(; ;  2  8tark.  Evid.  570,  v.  Passer,  Peake's  Cas.  231.  [So,  where 
571;  Dole  v.  Allen,  4  Greenl.  527.  [In  a  grantee  at  the  time  of  receiving  a  deed 
an  action  against  the  selectmen  of  a  town  of  land,  agreed  by  parol  that  the  grantor 
for  refusing  to  receive  the  vote  of  the  might  continue  to  exercise  a  right  qt'  way 
plaintiff,  an  inhabitant  of  the  town,  parol  over  the  laud,  the  evidence  was  held  ad- 
evidence  that  the  i)laintlff's  name  was  on  missible,  not  because  a  right  of  way  can 
the  voting  list  used  at  the  election  is  inad-  be  created  by  a  parol  gi-ant,  liut  to  show 
missible  without  first  givLng  notice  to  pro-  that  the  grantor's  subsequent  jxissession  ot 
(luce  the  list,  such  list  being  an  otMcial  such  easement  commenced  under  a  clann 
document.  Harris  v.  Wlutcomb,  4  Gray,  of  right. '  Ashley  v.  Ashley,  4  Gray,  lU'J.] 
433.]  [*  There  will  be  recognized  no  ""  The  principles  on  which  a  writing  is 
degrees  in  the  same  class  of  secondary  deemed  \y,\vi  of  the  essence  of  any  trans- 
ovrdence.  Carpenter  v.  Dame,  10  Ind.  action,  and  conscciuently  the  best  or  pri- 
125.  Uut  see  Harvey  r.  Thorpe,  28  Ala.  iiiaiy  proof  of  it,  are  thus  exiilained  by 
250.1  Domat :  "  The  force  of  written  jtroof  con- 
s' See  sitimi,  §  27  ;  infra,  §§  169,  170,  sists  in  this ;  men  agree  to  preserve  by 
186,  204,  205.  writing  the  remembrance  of  past  events, 
^  Scott  V.  Clare,  3  Cami)b.  236 ;  .Tenner  of  which  they  wish  to  create  a  memorial, 
V.  JoUifle,  6  Johns.  9 ;  Welland  Canal  Co.  eitiier  with  a  view  of  laying  down  a  rule 
V.  Hathawav,  8  Wend.  480 ;  1  Leach,  Cr.  for  their  own  guidance,  or  in  order  to  have, 
C.  349 ;  2  Id.  625,  635.  in  the  instrument,  a  lasting  proof  of  the 
•*  Commonwealth  v.  Norcross,  9  Mass.  truth  of  what  is  written.  Thus  conlxacts 
492;  Ellis  t'.  Ellis,  11  Mass.  92;  Owings  are  written,  in  order  to  preserve  theme- 


CHAP.  IV.] 


THE   BEST   EVIDENCE. 


103 


and  occupation  of  real  estate,  and  it  appears  by  the  plaintiff's 
own  showing-  tliat  there  was  a  written  contract  of  tenancy,  he 
must  produce  it,  or  account  for  its  absence ;  though,  if  he  were  to 
make  out  a  prhnd  facie  case,  without  any  ai)})earance  of  a  written 
contract,  the  burden  of  producing  it,  or  at  least  of  proving  its 
existence,  would  be  devolved  on  the  defendant.^  But  if  the  fact 
of  the  occupation  of  land  is  alone  in  issue  without  respect  to  the 
terms  of  the  tenancy,  this  fact  may  be  proved  by  any  competent 
oral  testimony,  such  as  payment  of  rent,  or  declarations  of  the 
tenant,  notwithstanding  it  appears  that  the  occupancy  was  under 
.an  agreement  in  writing;  for  here  the  writing  is  only  collateral 
to  the  fact  in  question. ^  The  same  rule  applies  to  every  other 
species  of  written  contract.  Thus,  where  in  a  suit  for  the  price 
of  labor  performed,  it  appears  that  the  work  was  commenced 
under  an  agreement  in  writing,  the  agreement  must  be  produced  ; 
and  even  if  the  claim  be  for  extra  work,  the  plaintiff  must  still 
produce  the  written  agreement ;  for  it  may  furnish  evidence,  not 
only  that  the  work  was  over  and  beyond  the  original  contract,  but 
also  of  the  rate  at  which  it  was  to  be  paid  for.  So,  in  an  indict- 
ment for  feloniously  setting  fire  to  a  house,  to  defraud  the  in- 
surers, the  policy  itself  is  the  appropriate  evidence  of  the  fact  of 
insurance,  and  must  b9  produced.^  And  the  recorded  resolution 
of  a  charitable  society,  under  which  the  plaintiff  earned  the 
salary  sued  for,  was  on  the  same  principle  held  indispensably 
necessary  to  be  produced.*  The  fact,  that  in  such  cases  the  writ- 
ing is  in  the  possession  of  the  adverse  party,  does  not  change  its 
character ;  it  is  still  the  primary  evidence  of  the  contract ;  and 
its  absence  must  be  accounted  for,  by  notice  to  the  other  party  to 


morial  of  what  tlie  contracting  parties  have 
prescribed  for  each  other  to  do,  and  to 
make  for  themselves  a  tixed  and  immuta- 
ble law,  as  to  what  has  been  agreed  on. 
So,  testaments  are  written,  in  order  to  pre- 
serve the  remembrance  of  what  the  party, 
who  has  a  rigiit  to  dispose  of  liis  jiroperty, 
lias  ordained  concerning  it,  and  thereby 
lay  down  a  rule  for  the  guidance  of  his 
heirs  and  legatees.  On  the  same  principle 
are  reduced  into  writing  all  sentences, 
judgments,  eilicts,  ordonnances,  and  other 
matters,  which  either  confer  title,  or  have 
the  force  of  law.  The  writing  jireserves, 
unchanged,  the  matters  intrusted  to  it, 
and  expresses  the  intention  of  the  parties 
by  their  own  testimony.  The  trutli  of 
written  acts   is    established   by   the   acts 


themselves,  that  is,  by  the  insjicction  of 
tlie  originals."  See  Domat's  Civil  Law, 
Liv.  3,  tit.  tJ,  §  2,  as  translated  in  7  Month- 
ly Law  Mag.  p.  73. 

1  Brewer  v.  Palmer,  3  Esp.  213 ;  con- 
firmed in  Kamsbottom  /•.  Tunbridge,  2  M. 

6  S.  -IIU ;  Hex  v.  Kawden,  8  B.  &"C.  708  ; 
Strother  c.  Barr,  ■>  Binu'.  loG,  per  Parke,  J. 
[*  Magnay  v.  Knight,  I  M.  &  Gr.  944.] 

-  Bex  IK  Inhabitants  of  Holy  Trinity, 

7  B.  &  C.  Oil;  Doe  r.  Harvey,  8  Bing. 
23'J,  241 ;  Spiers  v.  AVillison,  4  Cranch, 
398;  Dennet  v.  Crocker,  8  Grecnl.  239, 
244. 

8  Bex  V.  Doran,  1  Esp.  127 ;  Eex  v. 
Gilson,  Buss.  &  By.  138. 

*  Whitford  r.  tutin  tt  al.  10  Bing.  395  j 
Molton  r.  Harris,  2  Esp.  u40. 


104  LAW   OF   EVIDENCE.  [PART  II. 

produce  it,  or  in  some  other  legal  mode,  before  secondary  evidence 
of  its  contents  can  be  received.^ 

§  88.  In  the  third  place^  oral  evidence  cannot  be  substituted 
for  any  writhif/,  the  existence  of  ivhich  is  disputed,  and  which  is 
material  either  to  TJie~issue  Ijetioem  the  parties,  or  to  the  credit  o^ 
witnesses^px^  isjaot  merely  the  memorandum  of^soine^ 9^f>^  ^^^K 
For,  l)y  applying  the  rule  to  such  cases,  the  court  acquires  a 
knowledge  of  the  whole  contents  of  the  instrument,  wliich  may 
have  a  different  effect  from  the  statement  of  a  part.^     "  I  have 
always,"  said  Lord  Tenterden,  "  acted  most  strictly  on  the  rule, 
that  what  is  in  writing  shall  only  be  proved  by  the  writing  itself. 
My  experience  has  taught  me  the  extreme  danger  of  relying  on 
the  recollection  of  witnesses,  however  honest,  as  to  the  contents  of 
written  instruments ;  they  may  be  so  easily  mistaken,  that  I  thmk 
the  purj)oscs  of  justice  require  the  strict  enforcement  of  the  rule."  ^ 
"TIius,  it  is  not  allowed,  on  cross-examination,  in  the  statement 
of  a  question  to  a  witness,  to  represent  the  contents  of  a  letter, 
and  to  ask  the  witness  whether  he  wrote  a  letter  to  any  person 
with  such  contents,  or  contents  to  the  like  effect ;  without  having 
first  shown  the  letter  to  the  witness,  and  having  asked  him  whether 
he  wrote   that  letter,  because,   if  it  were   otherwise,  the   cross- 
examining  counsel  might  put  the  court  in  possession  of  only  a 
part  of  the  contents  of  a  paper,  when  a  knowledge  of  the  whole 
was  essential  to  a  right  judgment  in  the  cause.     If  the  witness 
acknowledges  the  writing  of  the  letter,  yet  he  cannot  be  questioned 
as  to  its  contents,  but  the  letter  itself  must  be  read.*    And  if 
a  witness  being  examined  in  a  foreign  country,  upon  interrogato- 
ries sent  out  with  a  commission  for  that  purpose,  should  in  one 
of  his  answers  state  the  contents  of  a  letter  which  is  not  produced  ; 
that  part  of  the  deposition  will  be  suppressed,  notwithstanding, 
he  Ijcuig  out  of  the  jurisdiction,  there  may  be  no  means  of  com- 
pelling him  to  produce  the  letter.^ 

§  80.  In  cases,  however,  where  the  written  communication  or 
agreement  between  the  parties  is  collateral  to  tlie  question  in  issue, 

1  See  further,  Rex  v.  Rawrlen,  8  B.  &  ^  po  held   by   all   the  judpres   in   tho 

C.   70^ ;  Sehree  i'.  Dorr,  9  Wiicat.  Tv^S ;  Queen's  ease,  2  Brod.  &  Blng.  287.     See 

Bullock  V.  Koon,  U  Cowen,  30;  Mather  ?-.  also  Thil.   &  Am.  on  Evid.  441 ;  1  Phil. 

Cioddard,  7  Conn.  304  ;  Rank  v.  Sliewey,'  Evid.  422. 

4   Watts,  218 ;  Northrup   v.   Jackson,  13  '^  Vincent  v.  Cole,  1  M.  &  M.  258. 

Wend.  8G ;    Vinal  r.  Burrill,  10  Tick.  401,  *  Tlie  Queen's  case,  2  B.  &  B.  287 ;  in- 

407,  408:  Lanauze  v.  Palmer,  1  M.  &  M.  fra,  §  4G3. 

31.  6  Steinkeller  r  Newton,  9  C.  &  P.  313. 


CHAP.  IV.]  THE   BEST   EVIDENCE.  105 

it  need  not  be  produced ;  as,  where  the  writhig  is  a  mere  proposal, 
which  has  not  been  acted  upon  ;  ^  or,  where  a  written  memorandum  \ 
was  made  of  the  terms  of  the  contract,  which  was  read  in  the  ' 
presence   of  the   parties,  hut   never   signed,  or   proposed   to   be  |n 
signed ;  ^  or,  where,  during  an  employment  under  a  written  con-     <. 
tract,  a  separate  verbal  order  is  given ;  ^  or,  w  here  the  action  is     ^1 
not  directly  upon  the  agreement,  for  non-performance  of  it,  but 
is  in  tort,  for  the  conversion  or  detention  of  the  document  itself ;  * 
or,  where  the  action  is  for  the  plaintiff's  share  of  money  had  and 
received  by  the  defendant,  under  a  written  security  for  a  debt  due 
to  them  botli.^ 

§  90,  But  where  the  writing  does  not  fall  within  either  of  the 
tlu-ee  classes  already  described,  there  is  no  ground  for  its  exclud- 
ing oral  evidence.  As,  for  example,  if  a  written  communication 
be  accompanied  by  a  verbal  one,  to  the  same  effect,  the  latter  may 
be  received  as  independent  evidence,  though  not  to  prove  the 
contents  of  the  writing,  nor  as  a  substitute  for  it.  Thus,  also, 
the  payment  of  money  may  be  proved  by  oral  testimony,  though 
a  "receipt  be  taken  ;^  in  trover,  a  verbal  demand  of  the  goods  is 
admissible,  though  a  demand  in  writing  was  made  at  the  same 
time  ; "'  the  admission  of  indebtment  is  provable  by  oral  testimony, 
though  a  written  promise  to  pay  was  simultaneously  given,  if  the 
paper  be  inadmissible  for  want  of  a  stamp.^  Such,  also,  is  the 
case  of  the  examination  and  confession  of  a  prisoner,  taken  down 
in  writing  by  the  magistrate,  but  not  signed  and  certified  pursuant 
to  the  statutes.^  And  any  writing  inadmissible  for  the  want  of 
a  stamp ^  or  other  irregularity,  may  still  be  used  by  the  witness 
who  wrote  it,  or  was  present  at  the  time,  as  a  memorandum  to 


1  Ingram  v.  Lea,  2  Campb.  521 ;  Kams-  er  v.  "\^''elsh,  17  ]\Iass.  165;  McFadden  v. 
bottom^'.  Tunbridge,  2  M.  &  S.  484 ;  Ste-  Kingsbuiy,  11  Wend.  067 ;  Soutliwick  v. 
phens  V.  IMnney,  8  Taiuit.  327  ;  Doe  v.  Stepliens,  10  Jolins.  443.  [Where  a  writ- 
Cartwriglit,  3  B.  &  A.  326 ;  Wilson  v.  ing  does  not  purport  to  contain  the  entire 
Bowie,  1  C.  &  P.  8  ;  Hawkins  v.  Warre,  3  contract  between  parties,  additional  terms 
B.  &  C.  6',)0.  may   be   shown    by   parol.      Webster    v. 

2  Truwhitt  v.  Lambert,  10  Ad.  &  El.  Ilodgkins,  5  Foster  (N.  H.),  128.] 

470.  "  Kambert  v.  Cowen,  3  Esp.  213 ;  Ja- 

3  Reid  V.  Battie,  M.  &  M.  413.  cob  v.  Lindsay,  1  East,  460;  Doe  v.  Cart- 
*  Jolley  r.  Taylor,  1  Campb.  143 ;  Scott  wrigbt,  3  B.  &  A.  326. 

V.  Jones  8  Taunt.  865 ;   How  r.  Hall,  14  '  Smith  v.  Young,  4  Campb.  439. 

East,  274  ;  Bucher  v.  Jarratt,  3  B.  &  P.  ^  Singleton  c.  Barrett,  2  Cr.  &  Jer.  368. 

143;  Whitehead  v.  Scott,  1  i\I.  &  Bob.  2;'  ^  Lambe's  ca.«e,  2  Leach,  625;  Kex  v. 

Ross  V.  Bruce,  1  Day,  100  ;  The  People  v.  Chappel,  1  iM.  &  Kob.  395,  396,  n. ;  2  Phil. 

Holbrook,  13  Johns.90 ;  McLean  v.  Hei't-  Evid.  81,  82;   Roscoe's  Crim.  Evid.  46, 

zog,  6  S.  &  R.  154.  47. 
5  Bayue  v.  Stone,  4  Esp.  13.     See  Tuck- 


106  LAW   OF   EVIDENCE.  [PART   II. 

refresh  his  ovrn  memory,  from  -which  alone  he  is  supposed  to  tes- 
tify, independently  of  the  written  paj)er.^  In  like  manner,  in 
prosecutions  for  political  offences,  such  as  treason,  conspiracy,  and 
sedition,  the  inscription  on  flags  and  banners  paraded  in  public, 
and  the  contents  of  resolutions  read  at  a  public  meeting,  may  he 
})roved  as  of  the  nature  of  speeches,  by  oral  testimony ;  -  and  in 
the  case  of  jjrm^etZ  papers,  all  the  impressions  are  regarded  as 
originals,  and  are  evidence  against  the  person  who  adopts  the 
printing  by  taking  away  copies.^ 

§  91.  The  rule  rejecting  secondary  evidence  is  sulyect  to  some 
exceptioyis ;  grounded  either  on  public  convenience,  or  on  the 
nature  of  the  facts  to  be  proved.  Thus,  the  contents  of  any 
record  of  a  judicial  court,  and  of  entries  in  any  other  picblic  books 
or  registers,  may  be  proved  by  an  examined  copy.  This  exception 
extends  to  all  records  and  entries  of  a  public  nature,  in  books 
required  by  law  to  be  kept ;  and  is  admitted  because  of  the  incon- 
venience to  tlie  public  which  the  removal  of  such  documents 
might  occasion,  especially  if  they  were  wanted  in  two  places  at 
the  same  time  ;  and  also,  because  of  the  public  character  of  the 
facts  tlicy  contain,  and  the  consequent  facility  of  detection  of  any 
fraud  or  error  in  the  copy.* 

§  1)2.  For  the  same  reasons,  and  from  the  strong  presumption 
arising  from  the  undisturl)cd  exercise  of  a  public  office,  that  the 
appointment  to  it  is  valid,  it  is  not,  in  general,  necessary  to  prove 
the  written  appointments  of  public  officers.  All  who  are  proved  to 
have  acted  as  such  are  presumed  to  have  been  duly  appointed 
to  the  office,  until  the  contrary  appears;^  and  it  is  not  material 
how  the  question  arises,  whether  in  a  civil  or  criminal  case,  nor 

■   1  Diilison  V.  Stark,  4  Esp.  103 ;  Jacob  1  M.  &  Roh.  189.      [A  rejj;istry  copy  of 

r.  Lindsay,  1  East,  4(')0 ;  Mau,<;ha7n »;.  Hub-  a  deed  of  land  is  not  admissible  in  evi- 

bard,  8  B.  &  C.  14;    liex  v.  Tarrant,  G  C.  dence  against  tlie  grantee,  without  notice 

&  P.  1H2;  Hex  v.  Pressly,  Id.  183  ;  Lay-  to  liiiu  to  i)roduce  the  orijiiual,  the  original 

er's  case,  Iti  Howell's  St.  Tr.  223;  infra,  being  pri'suniud  to  be  in  bis  jxjssession. 

§§  228,  43G.  Coninionwealth   v.   Emery,    2   (iray,    80. 

'■^  Kex  V.  Hunt,  3  B.  &  A.  56G ;  Slieri-  Where  the  originals  are  not  jjresunied  to 

dan  &  Kirwan's  case,  31  Howell's  St.  Tr.  be  in  the  possession  of  either  party  to  the 

672.  suit,  olKce  copies  of  deeds  are  admissible. 

3  Rex  V.  Watson,  2  Stark.  R.  129,  130.  Blaiichard  o.  Young,  11  Cush.  345.     See 

*  Bull.  N.  P.  22fi  ;  1  Stark.  Evid.  189,  also  J'alnier  v.  Stevens,  lb.  147-] 

191.     But  this  ex(!eption  does  not  exteinl  '"  An  olticer  Jr;  /«c/o  is  one  wlio  exerci- 

to  an  answer  in  chancery,  where  the  party  ses  an  otHce  under  color  of  right,  by  vir- 

is  indicted  for  perjurj' therein  ;  for  there  tue  of  some  aj)pointment  or  election,  or  of 

the  original  must  be  ]iro(hiced,  in  order  to  such  acquiescence  of  the  public  as  will 

identify  the   l>arty,   by  ]iroof  of  his  hand-  authorize  tlie  ])resum])tion,  at  least,  of  a 

writing,     'i'he  same  reason  aiijjlics  to  de-  colorable   ai)iioiiitUR-nt  or  election;  being 

positions  and  allidavits.     Rex  v.  Howard,  distinguished,    on  the  one  baud,  fiom  a 


CHAP.  IV.] 


THE   BEST   EVIDENCE. 


107 


wlicthcr  the  officer  is  or  is  not  a  party  to  tlic  record ;  ^  unless, 
being  plaintilT,  he  unnecessarily  avers  his  title  to  the  office,  or  the 
mode  of  his  aj)j)(jintinent ;  in  which  case,  as  has  been  already 
shown,  tlie  proof  must  support  the  entire  allegation.^  These  and 
similar  exceptions  arc  also  admitted,  as  not  being  within  the 
reason  of  the  rule,  which  calls  for  primary  evidence,  namely ^f  the 
presumption  of  fraud,  arising  from  its  non-production. 

§  93.  A  further  relaxation  of  the  rule  has  been  admitted,  where 
the  evidence  is  the  result  of  volumi7ious  facts,  or  of  the  inspection 
oi  many  hooks  and  papers,  the  examination  of  which  could  not  con- 
veniently take  place  in  court.^  Thus,  if  there  be  one  invariable 
mode  in  which  bills  of  exchange  have  been  drawn  between  partic- 
ular parties,  this  may  be  proved  by  the  testimony  of  a  witness 
conversant  with  their  habit  of  business,  and  speaking  generally  of 
the  fact,  without  producing  the  bills.  But  if  the  mode  of  dealing 
has  not  been  uniform,  the  case  does  not  fall  within  this  exception, 
but  is  governed  by  the  rule  requiring  the  production  of  the  writ- 
ings.* So,  also,  a  witness  who  has  inspected  the  accounts  of  the 
parties,  though  he  may  not  give  evidence  of  their  particular  con- 
tents, may  be  allowed  to  speak  to  the  general  balance,  without 


mere  usurper  of  office,  and  on  the  other 
from  an  otficer  de  jure.  Wilcox  v.  Smith, 
5  Wend.  2ol ;  Plymouth  v.  Painter,  17 
Conn.  585;  Burke";-.  Elliott,  4  Ired.  355. 
Proof  that  a  person  is  reported  to  be  and 
has  acted  as  a  public  ofhcer  is  prima  facie 
evidence,  between  third  persons,  of  his 
otlicial  character.  McCoy  v.  Curtice,  9 
Wend.  17.  And  to  this  end  evidence  is 
admissililc,  not  only  to  show  that  he  exer- 
cised the  office  before  or  at  tlie  period  in 
question,  but  also,  limited  to  a  reasonable 
time,  that  he  exercised  it  afterwards. 
Doe  V.  Younjj,  8  Ad.  &  El.  G3,  n.  s.  And 
see  supra,  §  83.  [Cabot  v.  Given,  45 
Maine,  44.] 

1  Kex  V.  Gordon,  2  Leach's  C.  C.  581 ; 
Berryman  v.  Wise,  4  T.  K.  366;  McGa- 
hey  V.  Alston,  2  I^[ees.  &  Wels.  206,  211 ; 
Kadford  v.  Mcintosh,  3  T.  K.  632  ;  Cross 
I'.  Kaye,  6  T.  R.  663  ;  James  v.  Brawn,  5 
B.  &  A.  243;  Kex  v.  Jones,  2  Campb. 
131;  Rex  v.  Verelst,  3  Campb.  432. 
A  commissioner  appointed  to  take  affi- 
davits is  a  public  otficer,  within  this  cx- 
,  ception.  Rex  v.  Howard,  1  M.  &  Rob. 
187.  See  supra,  §  83;  United  States  v. 
Reyburn,  6  Peters,  352,  367 ;  Regina 
V.  Newton,  1  Car.  &  Kir.  369 ;  Doe  v. 
Barnes,  10  Jur.  520;  8  Ad.  &  El.  1037, 


N.  s. ;  Plumer  v.  Briscoe,  12  Jur.  351 ;  11 
Ad.  &  El.  46,  N.  s. ;  Doe  v.  Young,  8  Ad. 
&  El.  63,  N.  s. 

^  Supra,  §  56 ;  Cannell  v.  Curtis,  2 
Bing.  N.  C.  228  ;  Moises  v.  Thornton,  8  T. 
R.303;  The  People  v.  Ilopson,  1  Denio, 
574.  In  an  action  by  the  slieriff  for  his 
poundage,  proof  that  he  has  acted  as  sher- 
iti'has  been  held  sulficient  ;«■/;//«  /arie  evi 
dence  that  he  is  so,  without  proof  of  his 
appointment.  Bunbury  ?•.  ]\latthews,  1 
Car.  &  Ivir.  380.  But  in  New  York  it  lias 
been  held  otherwise.  The  People  t:  Hop- 
son,  S)(/>ra. 

3  Phil.  &  Am.  on  Evid.  445;  1  Phil. 
Evid.  433,  434.  The  rides  of  pleading 
have,  for  a  similar  reason,  been  made  to 
yield  to  public  convenience  in  the  ailmin- 
istration  of  justice  ;  and  a  general  allega- 
tion is  ordinarily  allowed,  "  when  the  maf- 
ters  to  l)e  pleaded  tend  to  intiniteness 
and  nniltiplicity,  whereby  the  rolls  shall 
be  encumbered  with  the  length  thereof." 
Mints  V.  Bethil,  Cro.  Eliz.  749  ;  Stephens 
on  Pleading,  359,  360.  Courts  of  Equity 
admit  the  same  exception  in  regard  to 
parties  to  bills,  where  tliey  are  numerous, 
on  the  like  grounds  of  convenience.  Story 
on  Eq.  PI.  94,  95,  i-t  seq. 

■*  bpeucer  c.  Billing,  3  Campb.  310. 


108 


LAW   OF   EVIDENCE. 


[part  II. 


producing  the  accounts.^  And  where  the  question  is  upon  the 
solvency  of  a  party  at  a  jiarticuhir  time,  the  general  result  of  an 
examination  ot'  his  books  and  securities  may  be  stated  in  like 
manner.^ 

§  94.  Under  this  head  may  be  mentioned  the  case  of  inscriptions 
on  walls  and  fixed  tables,  mural  monuments,  gravestones,  surveyors' 
marks  on  boundary  trees,  <fcc.,  Avhich,  as  they  cannot  conveniently 
be  produced  in  court,  may  be  proved  by  secondary  evidence.^* 

§  95.  Another  exception  is  made,  in  the  examination  of  a  wit- 
ness on  the  voir  dire,  and  in  'preliminary  inquiries  of  the  same 
nature.  If,  npon  such  examination,  the  witness  discloses  the  exis- 
tence of  a  written  instrument  affecting  his  competency,  he  may 
also  be  interrogated  as  to  its  contents.  To  a  case  of  this  kind, 
the  general  rule  requiring  the  production  of  the  instrument,  or  no- 
tice to  produce  it,  does  not  apply;  for  the  objecting  party  may 
have  been  ignorant  of  its  existence,  until  it  was  disclosed  by  the 
witness ;  nor  could  he  be  supposed  to  know  that  such  a  witness 
would  be  produced.  So,  for  the  like  reason,  if  the  witness,  on  the 
voir  dire,  admits  any  other  fact  going  to  render  him  incompetent, 
the  effect  of  which  has  been  subsequently  removed  l)y  a  written 
document,  or  even  a  record,  he  may  speak  to  the  contents  of  such 
writing,  without  producing  it ;  the  rule  being  that  where  the  ob- 
jection arises  on  the  voir  dire,  it  may  be  removed  on  the  voir  dire^ 
If,  however,  the  witness  produces  the  writing,  it  must  be  read, 
beino-  the  best  evidence.^ 


1  ■Roberts  r.  Doxon,  Pcake's  Cas.  83. 

Ip.iii  li.,!  :i-  I.J  ii  irticiilar  t'ai'ts  umjoaring  on 
Ihr  liuiik.-,  or  ia>liicil)]i-  riimi  the  entries. 
Dupuy  V.  Trnman,  '1  Y.  &  C.  341. 

-  Meyer  v.  Sefton,  2  Stark.  K.  274. 
[When  hooks  and  docnments  introdnced 
in  evidence  at  the  trial  are  muhifarious, 
and  voknninous,  and  of  such  a  character 
as  to  render  it  difficult  for  the  jnry  to  com- 
l)rehend  material  facts,  without  schedules 
containing,'  abstracts  thereof,  it  is  within 
tl^e  discretion  of  the  presidinfx  judge  to 
admit  such  schedules,  verified  by  the 
testimony  of  the  person  by  whom  they 
were  prepared,  allowing  the  adverse  party 
an  opportunity  to  examine  them  before  the 
case  is  submitted  to  the  jury.  Boston  & 
AV.  K.  II.  Corp.  V.  Dana,  1  Gray,  83,  104. 
See  also  llolbrook  v.  Jackson,  7  Cush. 
13G.1 

«  Doe  V.  Coyle,  6  C.  &  P.  3G0 ;  Rex  v. 
Fursey,  Id.  81.  But  if  the}-  can  conven- 
iently be  brought  into  court,  their  actual 


production  is  required.  Thus,  wliere  it 
■was  proposed  to  show  the  contents  of  a 
printed  notice,  hung  up  in  tlie  office  of  the 
party,  who  was  a  carrier,  parol  evidence 
of  its  contents  was  rejected,  it  not  being 
affixed  to  the  freehold.  Jones  v.  Tarlton, 
1  D.  P.  C.  (N.  s.)  625. 

*  Phil.  &  Am.  on  Evid.  149  ;  1  Phil. 
Evid.  154,  155 ;  Butchers'  Co.  v.  Jones,  1 
Esp.  160;  Bothani  c.  Svvingler,  Id.  164; 
Pex  V.  Gisburn,  15  East,  57;  Carlisle  v. 
Eadv,  1  C.  &  P.  284,  note  ;  Miller  v.  Mar- 
iners' Church,  7  Greenl.  51 ;  Sewell  v. 
Stubbs,  1  C.  &  P.  73. 

'"  Butler  r.  Carver,  2  Stark.  P.  434.  A 
distinction  has  been  taken  between  cases, 
where  the  competency  apiiears  from  tlie 
examination  of  the  witness,  and  thoi^e 
where  it  is  already  apparent  from  tiie  rec- 
ord, without  his  examination  ;  and  it  baa 
been  held,  that  the  latter  case  falls  within 
the  rule,  and  not  within  the  e.xcei)tion, 
and  that  the  writing  which  restores  tlio 


CHAP.  lY.]  THE   BEST   EVIDENCE.  109 

§  96.  It  may  l)e  proper,  in  this  place,  to  consider  the  question, 
whether  a  vrrlxd  admission  of  the  contents  of  a  toriting,  hy  the  party? 
himself,  will  supersede  the  necessity  of  giving  notice  to  produce  it ;; 
or,  in  otlier  words,  whether  such  admission,  being  made  against; 
the  party's  own  interest,  can  be  used  as  primary  evidence  of  the 
contents  of  the  writing,  against  him  and  those  claiming  under 
him.  Upon  this  question,  there  appears  some  discrepancy  in  the 
authorities  at  Kisi  Prius.^  But  it  is  to  be  observed,  that  there  is 
a  material  difference  between  proving  the  execution  of  an  attested 
instrument,  when  produced,  and  proving  the  party's  admission,- 
that  by  a  written  instrument,  which  is  not  produced,  a  certain  act 
was  done.  In  the  former  case,  the  law  is  well  settled,  as  we  shall 
hereafter  show,  that  when  an  attested  instrument  is*  in  court,  and 
its  execution  is  to  be'  proved  against  a  hostile  party,  an  admission 
on  his  part,  unless  made  with  a  view  to  the  trial  of  that  cause,  is 
not  sufficient.  This  rule  is  founded  on  reasons  peculiar  to  the 
class  of  cases  to  which  it  is  applied.  A  distinction  is  also  to  be 
observed  between  a  confessio  juris  and  a  confessio  facti.  If  the 
admission  is  of  the  former  nature,  it  falls  within  the  rule  already 
considered,  and  is  not  received  ;  ^  for  the  party  may  not  know  the 
legal  effect  of  the  instrument,  and  his  admission  of  its  nature  and 
effect  may  be  exceedingly  erroneous.  But  where  the  existence,; 
and  not  the  formal  execution,  of  a  writing  is  the  subject  of  inquiry, 
or  where  the  writing  is  collateral  to  the  principal  facts,  and  it  is 
on  these  facts  that  the  claim  is  founded,  the  better  opinion  seems 
to  be,  that  the  confession  of  the  party,  precisely  identified,  is 
admissible  as  primary  evidence  of  the  facts  recited  in  the  writing ; 
though  it  is  less  satisfactory  tlian  the  writing  itself.^  Very  great 
weight  ought  not  to  be  attached  to  evidence  of  Avhat  a  party  has 
been  supposed  to  have  said ;  as  it^  frequently  happens,  not  only 

competency  must  be  produced.     See  ace.  Shepl.  138.     [In  an  action  on   a  written 

Goodhay  v.  Hendry,  1  M.  &  M.  319,  per  contract,  which  is   put   in  evidence,  the 

Best,  C.  J.,  and  Id."  321,  n.,  i)er  Tindall,  C.  plaintiff  cannot  introduce  the  oral  declara- 

J.     But  see  Carlisle  i\  Eady,  1  C.  &  P.  tions  of  the  det'cndant  as  to  his  supposed 

234,  per   Parke,  J.;    Wandless   v.    Caw-  liability;  since  if  the  declarations  varied 

thorne,  1  M.  &  JM.  321,  n.,  per  Parke,  J.,  the  terms  of  the  written  contract,  they 

contra.     See  1  Phil.  Evid.  154,  155.  were  not  competent  testimony  ;    if  tiiey 

1  Phil.  &  Am.  on  Evid.  363,  ot>4  ;    1  did  not,  they  were  inunaterial.     Goodell 

Phil.  Evid.  34G,  347.     See  the  Monthly  v.  Smith,  U  Cush.  592.1 

Law  Magazine,  vol.  5,  p.  17;3-187,  wliere  ^  Howard  v.  Smith,  3  Scott,  X.  R.  574; 

this   point   is   distinctly    treated.     [*See  Smith  c.  Palmer,  6  Cush.  515;  [Slatterie 

Taylor's  Evidence,  §§  381-383.]  v.  Pooley,  6  INlees.  &  Wels..  0(34.      See  m- 

-  Supra,  §  80  ;  Moore  v.  Hitchcock,  4  fra,  §  205.] 
Wend.  262,  208,  2yU  ;  Paine  c.  Tucker,  8 


VOL.  I. 


10 


110 


LAW    OF   EVIDENCE. 


[tart  II. 


that  the  witness  lias  misunderstood  what  tlic  party  paid,  but  that, 
by  unintentionally  altering  a  few  of  the  expressions  really  used, 
he  gives  an  effect  to  the  statement,  completely  at  variance  with 
■what  the  party  actually  did  say,^  U]»()n  this  distinction  the  ad- 
judged cases  seem  chiefly  to  turn.  Thus,  where  in  an  action  by 
the  assignees  of  a  baiikru])1,  for  iiilViiiLiinL:-  a  patent-right  standing 
in  his  name,  the  defendant  proposed  to  prove  the  oral  declaration 
of  the  bankru{)t,  that  by  certain  deeds  an  interest  in  the  i)atent- 
right  had  been  conveyed  by  him  to  a  stranger,  the  evidence  was 
properly  rejected ;  for  it  involved  an  opinion  of  the  i)arty  upon 
the  legal  effect  of  the  deeds.^  On  the  other  hand,  it  has  been 
held,  that  the  fact  of  the  tenancy  of  an  estate,  or  that  one  person, 
at  a  certain  time,  occupied  it  as  the  tenant  of  a  certain  other 
person,  may  be  proved  by  oral  testimony.  But  if  the  terms  of 
the  contract  are  in  controversy,  and  they  are  contained  in  a  writ- 
ing, the  instrument  itself  must  be  produced.^ 

[  *  §  96a.  Notwithstanding  the  decision  in  Slatterie  v.  Pooley,^ 
that  the  admission  of  a  party  is  always  receivable  against  him, 
although  it  relate  to  the  contents  of  a  deed,  or  other  written 
instrument,  and  even  though  its  contents  be  directly  in  issue  in 
the  case,  the  proposition  seems  not  to  have  met  with  universal 
acquiescence.  The  Irish  courts  dissent  iVoni  it.-'*  And  the  New 
York  courts  adopt  a  different  view.^  And  there  is  no  restriction 
to  inquiries,  upon  cross-examination,  in  regard  to  jvritings,  and 
facts  evidenced  b^  writings ;  and  the  rule  extends  to  the  party 
who  is  a  witness  in  support  of  his  own  case  ;  and  he  may  be 
asked,  with  a  view  to  discredit  him,  if  he  did  not  in  a  similar  suit 
in  an  inferior  court,  give  evidence  before  the  jury  in  sup})ort  of 


1  Per  Parke,  J.,  in  Earle  ?-.  Picken,  5 
C.  &  P.  5-12,  note.  See  also  1  Stark.  Evid. 
So,  30 ;  2  Stark.  Evid.  17 ;  infra,  §§  200, 
208  ;  Ph.  &  Am.  on  Evid.  391,392  ;'l  Pliil. 
Evid.  372. 

-  Hloxani  V.  Elsee,  1  C.  &  P.  558  ;  Ry. 
&  M.  1S7,  .s.  c.  See,  to  the  same  point, 
Ke.v  i\  IIiil)e,  Peake's  Cas.  132;  Tiiomas 
V,  Ansley,  tj  Esp.  80 ;  Scott  v.  Clare,  3 
Campb.  230 ;  Re.K  v.  Careinion,  8  East, 
77 ;  llarri.son  v.  ^fore,  Phil.  &  Am.  on 
Evid.  3155,  n.  ;  1  Pliil.  Evid.  347,  n. ;  Re.x 
V.  Inhabitants  of  Castle  iMorton,  3  13.  &A. 
588. 

^  Erewer  v.  Palmer,  3  Esp.  213 ;  Re.x 
r.  Inhabitants  of  llolv  Trinity,  7  B.  &  C. 
611 ;  1  Man.  &  Ky.  444,  s.  c. ;  Strother  v. 


Barr,  5  Bing.  136 ;  Pamsbottom  v.  Tun- 
bridge,  2  M.  &  S.  434. 

■i  [*6  M.  &  \V.  664. 

5  Lawless  r.  Queale,  8  Ir.  Law,  382; 
Lord  (Joslurd  r.  Ilohh.Id.  217;  J'arsons  v. 
Pnreell,  12  Id.  90. 

«  .fenner  i\  JoiifJo,  6  Johns.  0 ;  Has- 
brotiek  v.  Baker,  10  Id.  218  ;  Welland  Canal 
1-.  Hathaway,  8  Wendell,  480.  But  it  was 
decided  in  a  recent  ease  in  New  York,  Ste- 
phens v.  Vroman,  16  N.  Y.  App.  381,  revers- 
ing the  judgment  of  the  Supreme  Court, 
that  it  is  not  competent  to  give  in  evidence 
tlie  declarations  of  the  opjjosite  party, 
that  he  had  heard  statements  inconsis- 
tent with  the  testimony  of  his  own  wit- 
nesses. Such  evidence  is  none  the  Icssj 
hearsay  because  repeated  by  the  party.]    | 


CHAP.  IV,]  THE   BEST   EVIDENCE.  Ill 

his  defouce,  and  whctlior  a  verdict  was  not  rendered  against  liim, 
without  producing  any  record  in  the  action.^  And  the  doctrine  of 
Slattcrie  v.  Pooley  is  approved  in  Massachusetts  in  recent  cascs.^] 

§  97.  There  is  a  chiss  of  cases,  which  seem  to  be  exceptions  to 
this  rule,  and  to  favor  the  doctrine,  that  oral  declarations  of  a 
party  to  an  instrument,  as  to  its  contents  or  effect,  may  be  shown 
as  a  substitute  for  direct  proof  by  the  writing  itself.  Ihit  tliesc 
cases  stand  on  a  different  principle,  namely,  that  where  the  admis- 
sion iiivohes  the  material  fact  in  2>ais,  as  u'ell  as  a  matter  of  laiv,  the 
latter  shall  not  operate  to  exclude  evidence  of  the  fact  from  the 
jury.  It  is  merely  placed  in  the  same  predicament  with  mixed 
questions  of  law  and  fact,  which  are  always  left  to_the_  j^ij^i^itkl 
the  advice  and  instructions  of  the  court.^  Thus,  where  the;  plain- 
tiff, in  ejectment,  had  verbally  declared  that  he  had  "  sold  the 
lease,"  under  which  he  claimed  title,  to  a  stranger,  evidence  of 
this  declaration  was  admitted  against  him.*  It  involved  the  fact 
of  the  making  of  an  instrument  called  an  assignment  of  the  lease, 
and  of  the  delivery  of  it  to  the  assignee,  as  well  as  the  legal  effect 
of  the  writing.  So,  also,  similar  proof  has  been  received,  that  the 
party  was  "  possessed  of  a  leasehold,"^ — ^^".held  a  note,"^ — "  had 
dissolved  a  partnership," — which  was  created  by  deed,"  —  and, 
that  the  iudorscr  of  a  dishonored  bill  of  exchange  admitted,  that 
it  had  been  "  duly  protested."  ^  What  the  party  has  stated  in  his 
answer  in  Chancery,  is  admissible  on  other  grounds,  namely,  that 
it  is  a  solemn  declaration  under  oath  in  a  judicial  proceeding,  and 
that  the  legal  effect  of  the  instrument  is  stated  under  the  advice 
of  counsel  learned  in  the  law.  So,  also,  where  both  the  existence 
and  the  legal  effect  of  one  deed  are  recited  in  another,  the  solem- 
nity of  the  act,  and  the  usual  aid  of  counsel,  take  the  case  out  of 
the  reason  of  the  general  rule,  and  justify  the  admission  of  such 
recital,  as  satisfactory  evidence  of  the  legal  effect  of  the  instrument, 
as  well  as  conclusive  proof  of  its  execution.''     There  are  other  cases, 

1  [  *  Ilonman  i'.  Lester,  12  C.  B.  n.  s.  "^  T^oe  d.  AVaithman  i'.  Miles,  1  Stark. 

77G;  s.  c.  y  Jiir.  n.  s.  tiOl.  R.  181  ;  4  Campb.  376. 

-  Lnomis   r.  AVadliams,    8  Gray,  557  ;  *  (;il)J)on8    r.  Cofipon,  2  Campb.  188. 

Smith  V.  Palmer,  G  Cash.  520.]  .  Wiiether  nn  ailmission  of  tlic  eoiinterteit 

*  United  States  i-.  Battiste,  2  Siimn.  character  of  a  bank-note,  which  the  i)arty 
240.  And  see  Newton  v.  Belcher,  12  Ad.  had  passed,  is  sntficient  evidence  of  the 
&  El.  921,  N.  s.  fact,  without  ])roducin,<>-  the  note,  qnme : 

*  Doe  d.  Lowden  r.  "Watson,  2  Stark,  and  See  Commonwealth  v.  Bijielow,  8 
R.  230.  INIet.  235. 

6  Digbj  V.  Steele,  3  Campb.  115.  *  Ashmore  v.  Hardy,  7  C.  &  P.  501 ; 

6  SeweU  V.  Stubbs,  1  C.  &  P.  73.  Digby  i-.  Steele,  3  Campb.  115;  Burleigh 


112  ,  LAW   OF   EVIDENCE.  [PART   II. 

which  may  seem,  at  first  view,  to  constitute  exceptions  to  the 
l)rcsent  rule,  but  in  which  the  declarations  of  the  party  were 
admissible,  either  as  contemporaneous  with  the  act  done,  and  ex- 
pounding its  character,  thus  being  part  of  the  res  gestce ;  or,  as 
t'stal)lisliing  a  collateral  fiict,  independent  of  the  written  instru- 
ment. Of  this  sort  was  the  declaration  of  a  bankrupt,  u})on  his 
return  to  his  house,  that  he  had  been  al)scnt  in  order  to  avoid  a 
writ  issued  against  him ;  ^  the  oral  acknowledgment  of  a  debt,  for 
which  an  unstamped  note  had  been  given ;  ^  and  the  oral  admis- 
sion of  the  party,  that  he  was  in  fact  a  member  of  a  society  created 
by  deed,  and  had  done  certain  acts  in  that  capacity .^ 

V.  Stibbs,  5  T.  E.  465 ;  AVest  v.  Davis,  7         i  Nfewman  v.  Stretch,  1  M.  &  M.  338. 
East,  363 ;  Paul  v.  Meek,  2  Y.  &  J.  116  ;  ^  Singleton  v.  Barrett,  2  C.  &  J.,  368. 

Breton  v.  Cope,  Beake's  Cas.  30.     [As  to  ^  Alderson  v.  Clay,  1  Stark.  U.  405  j 

answers  in  Chancery,  see  infra,  §  260,  and  Harvey  v.  Kay,  9  B.  &  C.  356. 
3  Greeul.  Evid.  §§  280,  290 ;  as  to  recitals 
in  deeds,  see  supra,  §  23,  note.] 


CHAP,  v.]  HEARSAY.  113 


CHAPTER   V. 

OF   HEARSAY. 

[*§  98.  Witnesses  must  testify  from  knowledge,  and  not  from  hearsay. 

99.  Hearsay  evidence  may  embrace  writings  and  all  matters  not  within  the  knowl- 
edge of  the  witness. 

100.  The  statements  of  tliird  persons  may  become  the  point  of  inquiry.     They  are 

then  not  hearsay. 

101.  This  rule  applies  to  proof  of  probable  cause,  sanity,  general  repute,  &c. 
101a.  The  subject  further  illustrated. 

102.  The  statements  of  a  pai'ty  may  be  shown  with  reference  to  mental  or  bodily 

affections,  whether  made  to  physicians  or  others. 

103.  General  reputation  in  the  family  will  support  pedigree. 

104.  And  tliis  is  competent  to  prove  the  time  of  births,  marriages,  and  deaths. 
104a.  Recent  English  decisions. 

105.  So  inscriptions  on  tombstones  and  other  monuments,  and  engravings  on  rings, 

and  charts,  pedigrees,  &c.,  are  admissible  as  original  evidence. 

106.  The  conduct  of  families  is  evidence  of  relationship. 

107.  The  fivct  that  persons  are  recognized  as  husband  and  wife  is  sufficient  evidence 

of  marriage,  in  ordinary  cases. 

108.  The  declarations  of  a  party  giving  character  to  his  acts  may  be  proved  as 

part  of  the  transaction. 
^  108a.  So  also  his  correspondence  in  connection  with  the  transaction. 

109.  Declarations  affecting  claim  of  title  to  land  made  while  the  party  is  in  posses- 

sion, cojnpetent. 

110.  All  declarations  must  be  concurrent  with  the  acts  to  be  admissible. 

111.  The  declarations  of  co-conspirators  in  furtherance  of  the  conmion  design  ad- 

missible against  each  other. 

112.  In  copartnersiiips,  the  acts  and  declarations  of  each  partner  in  furtherance  of 

the  connnou  design,  bind  the  firm, 
n.  to  112.  Review  of  the  cases,  as  to  the  admission  of  one  partner,  after  the  disso- 
lution, removing  the  bar  of  the  statute  of  limitations. 
— ^-  113.  The  declarations  of  an  agent,  made  in  the  course  of  his  agency,  are  admissi- 
ble as  part  of  the  res  (jcshn. 

114.  As  to  any  other  tacts,  within  the  knowledge  of  the  agent,  not  connected  with 

his  agency,  he  must  be  called  as  a  witness. 
114a.  The  e.vtent  to  wliich  public  corporate  companies  are  bound  by  the  declara- 
tions of  their  agents,  by  whom  they  alone  can  act. 

115.  Official  and   professional  entries,  by  persons  conusant   of  the  facts,  in  the 

course  of  their  duty,  and  where  there  is  no  known  motive  to  falsify,  and 
made  at  the  date  of  the  transaction,  the  person  being  dead,  may  be  received. 

116.  Further  illustrations  of  the  point.     Cases  cited. 

117.  Private  books  of  account  admissible  on  the  same  ground. 

10* 


114  LAW   OF   EVIDENCE.  [PART   H. 

§118.  In  tlie  American  courts  the  rule  is  extended  to  all  private  entries  of  the  party 
in  the  ordinary  course  of  his  business. 

119.  Tiie  same  rule  existed  in  the  Roman  Civil  Law,  and  in  France  and  Scotland. 

120.  It  seems  not  requisite  to  the  admission  of  Entries  by  the  party,  as  part  of  the 

res  fjesUe,  that  he  be  dead. 

121.  Indorsements  of  part  payment  upon  securities  is  evidence  of  the  same  char- 

acter. 

122.  If  made  before  debt  barred,  they  will  prevent  the  operation  of  the  statute  of 

limitations. 

123.  Enumeration   of  the  several  grounds  for  admitting  the  oral   declarations  of 

persons  as  substantive  evidence. 
12-4.  Principal  grounds  for  rejecting  hearsay  evidence. 

125.  The  rule  applies,  although  the  statement  were  made  upon  oath,  and  be  the 

best  proof  attainable. 

126.  Even  the  declarations  of  a  subscribing  witness  are  not  admissible  to  discredit 

his  own  attestation.] 

§  98.  TtiE  first  degree  of  meral  evidence,  and  that  which  is  most 
satisfactory  to  the  mind,  is  afforded  by  our  #wn  senses  ;  tMs  being 
direct  evidence,  of  the  highest  nature.  Where  this  cannft  be  had,  | ■) 
as  is  generally  the  case  iii  the  proof  of  facts  by  oral  testimony,  the 
law  requires  the  next  best  evidence,  namely,  the  testimony  of  those 
who  can  speak  from  their  own  personal  knowledge.  It  is  not 
requisite  that  the  witness  should  have  personal  knowledge  of  the 
main  fact  in  controversy ;  for  this  may  not  be  provable  by  direct 
testimony,  but  only  by  inference  from  other  facts  shown  to  exist. 
But  it  is  requisite  that,  whatever  focts  the  witness  may  speak  to, 
he  should  be  confined  to  those  lying  in  his  own  knowledge,  whether 
they  be  things  said  or""done,'aiid  should  not  testify  from"*iirforma- 
tTon  given  by  others,  however  worthy  of  credit  the^  may  be.  For 
it  is  found  indispensable,  as  a  test  of  truth,  and  to  the  proper  ad- 
ministration of  justice,  that  every  living  witness  should,  if  possible, 
be  subjected  to  the  ordeal  of  a  cross-examination,  that  it  may 
Tappear  what  were/ his  powers  of  perception^iis  opportunities  for 
I  observation  ;ihis  attcntiveness  in  observnig,Mthe  strength  of  his 
{recollectioii,5and  his  disposition  to  speak  the  truth.  But  testi- 
mony from  the  relation  of  third  persons,  even  where  the  informant 
is  known,  cannot  be  subjected  to  this  test ;  nor  is  it  often  possible 
to  ascertain  through  whom,  or  how  many  persons,  the  narrative 
has  been  transmitted,  from  the  original  witness  of  the  fact.  It  is 
this  whi.ch  constitutes  that  sort  of  second-hand  evidence  termed 
^  "  hearsay." 

§  99.  The  term  Iwarsay  is  used  with  reference  to  that  which  is  1 
written,  as  well  as  to  that  which  is  spoken ;  and,  in  its  legal  sense,^ 


CHAP,  v.]  HEARSAY.  115 

jit  denotes  that  kind  of  evidence,  which  docs  not  derive  its  vahio 
solely  from  the  credit  to  be  given  to  the  witness  himself,  but  rests 
also,  in  part,  on  the  veractty  and  competency  of  some  other  per- 
json.i  Hearsay  evidencc^^^as  thus  described,  is  uniformly  hehl 
'incompetent  to  establish  any  specific  fact,  wliich,  in  its  nature,  is 
susceptible  of  being  proved  bywitnesseSj  who  canspcak^frwu 
own  knoAvledj^.  That  this  species  of  testimony  supposes  some- 
thing better,  which  might  be  adduced  in  the  particular  case,  is 
not  the  sole  ground  of  its  exclusion.  Its  extrinsic  weakness,  its 
incompetency  to  satisfy  the  mind  as  to  the  existence  of  the  fact, 
and  the  frauds  which  may  be  practised  under  its  cover,  com])ine 
to  support  the  rule,  that  hearsay  evidence  is  totally  inadmissible.^ 
§  100.  Before  we  proceed  any  farther  in  the  discussion  of  this 
branch  of  evidence,  it  will  be  proper  to  dlKtinguiiOi  more  clearly 
between  hearsay  evidence  and  that  which  is  deemed  or-iginal.  For 
it  does  not  follow,  because  the  writing  or  words  in  question  are 
those  of  a  third  person,  not  under  oath,  that  therefore  they  are 
to  be  considered  as  hearsay.  On  the  contrary,  it  happens  in 
many  cases,  that  the  very  fact  in  controversy  is,  whether  such 
things  were  written  or  spoken,  and  not  whether  they  were  true ; 
and  in  other  cases,  such  language  or  statements,  whether  written  . 
or  spoken,  may  be  the  natural  or  inseparable  concomitants  of  the 
principal  fact  in  controversy.^  In  such  cases,  it  is  obvious,  that 
the  writings  or  words  are  not  within  the  meaning  of  hearsay,  but 
are  original  and  independent  facts,  admissible  in  proof  of  the 
issue. 

§  101.  Tlius,  where  the  question  is,  whether  the  party  acted 
prudently,  wisely,  or  in  good  faith,  the  wformation  on  which  he 
acted,  whether  true  or  false,  is  original  and  material  evidence. 
This  is  often  illustrated  in  actions  for  malicious  prosecution;'* 
and  also  in  cases  of  agency  and  of  trusts.  So,  also,  letters  and 
conversation  addressed  to  a  person,  whose  sanity  is  the  fact  in  the 
question,  being  connected  in  evidence  with  some  act  done  by  him, 
are  original  evidence  to  show  whether  he  was  insane  or   not." 

1  1   riiil.  Evid.   185  [Sussex  Peerage         *  Taylor  v.  Willans,  2  B.  &  Ad.  845. 

case,  11  CI.  &  Fin.  85,  \\'?,\  Stapylton  v.  So,  to  reduce  the  damajic.-s,  in  an  action 

Clou<;li,  "12  Kng.  Law  and  Eq.  R.  276].  for  libel.     Coliuan  v.  Soutliwick,  U  Johns. 

-  I'er  Manshall,  C.  J.,  in  Mima  Queen  45. 
V.  Hepburn,  7  Cranch,  290,  295.  296  ;  Da-  ^  Wheeler  v.  Alderson,  3  Hagg.  Eccl. 

Tis  V.  Wood,  1  Wlieat.  6,  8 ;  Hex  v.  Eris-  R.  574,  608  ;  Wright  v.  Tatham,  1  Ad.  & 

well,  3  T.  K.  707.  El.  3,  8;  7  Ad.  &  El.  ;]lo,  s.  c. :  4  Bing. 

8  Bartlett  v.  Delprat,  4  Mass.  708 ;  Du  n.  c.  489,  s.  c.    Whether  letters  addressed 

Bost  V.  Bereslbrd,  2  Camiib.  511.  to  the  person,  whose  sanity  is  in  issue,  are 


116 


LAW    OF    EVIDENCE. 


[part  II. 


The  replies  given  to  inquiries  made  at  the  residence  of  an  absent 
witness,  or  at  the  dwelling-house  of  a  bankrupt,  denying  that  he 
was  at  home,  are  also  original  evidencS.^     In  these,  and  the  like 
I  cases,  it  is  not  necessary  to  call  the  persons  to  whom  the  inquiries 
I  were  addressed,  since  their  testimony  could  add  nothing  to  the 
j  credibility  of  the  fact  of  the  denial,  which  is  the  only  fact  that  is 
material.      This  doctrine   aji})li('s   to    all   other   communications, 
wherever  the  fact  that  such  communication  was  made,  and  not  its 
^.tnith  or  falsity,  is  the  point   in    controversy .^     Upon   the   same 
principle  it  is  considered,  that  evidence  of  general  reputation,  repw- 
ted  oiviiership,  public  rumor,  general  7iotorietg,  and  the  like,  though 
composed  of  the  speech  of  third  persons  not  under  oath,  is  origi- 
nal evidence  and  not  hearsay ;  the  sul>ject  of  inquiry  being   the 
concurrence  of  many  voices  to  the  same  fact.^ 


admissible  evidence  to  prove  liow  he  vras 
treated  by  those  who  knew  him,  witlioiit 
showing  any  reply  on  his  part,  or  any 
other  act  connected  with  the  letters  or 
their  contents,  was  a  question  much  dis- 
cussed in  Wright  v.  Tatham.  Their  ad- 
missibility was  strongly  urged  as  evidence 
of  tlie  manner  in  which  the  i)erson  was  in 
fact  treated  by  those  who  knew  him  ;  but 
it  was  replied,  that  tiie  etlect  of  the  letters, 
alone  considered,  was  only  to  show  what 
were  the  o/iinions  of  the  writers  ;  and  that 
mere  ()])iiii()ns,  upon  a  distinct  fact,  were 
in  general  inadmissible;  but,  whenever  ad- 
missible, tiiey  must  be  proved,  like  other 
facts,  by  the  witness  himself  imder  oath. 
The  letters  in  this  case  were  admitted  by 
Gurney,  13.,  who  held  the  assizes;  and 
npon  error  in  the  Kxcliecpier  Chamber, 
four  of  tlie  learned  judges  deemeil  tiiem 
rightly  admitted,  and  three  thouglit  otlier- 
wise ;  but  the  i)oint  was  not  decided,  a  venire 
(If  novo  being  awarded  on  another  gromid. 
See  2  Ad.  &  El.  3 ;  and  7  Ad.  &  Kl.  329. 
Upon  the  new  trial  before  the  same  judge, 
the  letters  were  again  received;  and  for 
this  cause,  on  motion,  a  new  trial  was 
granted  b}'  Lord  Denman,  C.  J.,  and  Lit- 
tledale  and  Coleridge,  Judges.  The  cause 
was  then  again  tried  before  Coleridge,  J., 
who  rejected  the  letter;  and  e.\cei)tions 
being  taken,  a  writ  of  error  wa.s  again 
bi-ought  in  the  Exchequer  Chamber; 
where  the  six  learned  judges  present,  be- 
ing divided  equally  upon  the  question,  the 
judgment  of  the  King's  Bench  was  af- 
firmed (see  7  Ad.  &  El.":n;3,  408),  and  this 
judgment  was  afterwards  affirmed  in  the 
House  of  Lords  ;  see  4  Bing.  n.  c.  489) ;  a 
large  majority  of  the  learned  judges  con- 


to  the  party  were  not  admissible  in  evi- 
dence, unless  connected,  by  proof,  with 
some  act  of  his  own  in  regard  to  the  let- 
ters themselves,  or  their  contents. 

1  Crosby  v.  Percy,  1  'J'aunt.  364  ;  Mor- 
gan V.  Morgan,  9  Jiing.  \&,) ;  Sumner  v. 
.Williams,  5  Mass.  444;  I'ellelreau  v. 
Jackson,  11  Wend.  110,  123,  124;  Key 
V.  Shaw,  B  Bing.  320 ;  Phelps  v.  Foot,  1 
Conn.  387. 

2  Whitehead  v.  Scott,  1  M.  &  Rob.  2 ; 
Shott  V.  Streatlield,  LI.  8  ;  1  Ph.  Evid.  188. 

"^  Foulkes  V.  Sell  way,  3  lOsp.  23();  Jones 
V.  Perry,  2  Esp.  482 ;  Ilex  v.  Watson,  2 
Stark.  K.  IIG ;  Bull.  N.  P.  2913,  297.  And 
see  Hard  v.  Brown,  3  Washb.  87.  Evi- 
dence of  reputed  ownership  is  seldom  ad- 
missible, except  in  cjises  of  bankruptcy, 
by  virtue  of  the  statute  of  21  Jac.  1,  c.  19, 
§  11 ;  (iurr  v.  Kutton,  Holt's  N.  P.  Cas. 
327 ;  Oliver  v.  Bartlett,  1  Brod.  &  Bing. 
2G9.  Upon  the  question,  whether  a  libel- 
lous painting  was  made  to  represent  a  cer- 
tain individual.  Lord  EUenborough  per- 
mitted the  declarations  of  the  s])ectators, 
wlule  looking  at  the  pictiu'c  in  the  exhibi- 
tion-room, to  be  given  in  evidence.  Du 
Post  *?.  Bcresforil,  2  Campb.  512.  [The 
fact  that  8,  debtor  was  rejjuted  insolvent  at 
the  time  of  an  alleged  fraudulent  prefer- 
ence of  a  creditor,  is  comjietent  evidence 
teniling  to  siiow  that  his  ))reterred  creditor 
had  reasonable  cause  to  believe  him  insol- 
vent. Lee  r.  Kilburn,  3  Gray,  594.  And 
the  fact  that  he  was  in  good  repute  as  to 
property  may  likewise  be  iiroved,  to  show 
that  such  a  creditor  had  not  reasonable 
cause  to  believe  him  insolvent.  Bartlett 
V.  Decreet,  4  Gray,  113;  Hey  wood  v. 
Keed,  lb.  574.     In  both  cases  the  testi- 


curring  in  opinion,  that  letters  addressed    mony  is  admissibfe  oiT'tKe  groun^^ffiafffie 


CHAP,  v.]  HEARSAY.  117 

• 

[*  §  IQla.  Under  this  head,  it  has  been'  held  that  where  one 
claimed  to  have  procured  a  pistol  to  defend  himself  against,  the 
attack  of  another,  upon  the  ground  of  certain  information  received 
from  otlu'rs,  such  information  becomes  an  original  fact,  proper  to 
be  proved  or  disproved  in  the  case.^  So  in  an  action  for  fraudu- 
lently representing  another  woYthy  of  credit,  witnesses  conversant 
with  the  facts  of  the  transaction  in  question  may  be  allowed  to  de- 
pose that  at  the  time  they  also  regarded  the  person  trustworthy. 
So  it  may  be  shown  that  such  person  was  at  that  time  generally 
so  reputed  among  tradesmen  with  wliom  he  dealt.^] 

§  102.  Wherever  the  hodili/  or  mental  feelings  of  an  individual 
are  material  to  be  proved,  the  usual  expressions  of  such  feelings, 
made  at  the  time  in  question,  are  also  original  evidence.  If  they 
were  the  natural  language  of  the  affection,  w'hcther  of  body  or 
mind,  they  furnish  satisfactory  evidence,  and  often  the  only  proof 
of  its  existence.^  And  whether  thej»  were  real  or  feigned  is  for 
the  jury  to  determine.  Thus,  in  actions  for  criminal  conversation, 
it  being  material  to  ascertain  upon  what  terms  the  Imsl^and  and 
wife  lived  together  before  the  seduction,  their  language  and  de- 
portment towards  each  other,  their  correspondence  together,  and 
their  conversations  and  correspondence  with  third  persons,  are 
original  evidence.*  But  to  guard  against  the  abuse  of  this  fV^ 
it  has  been  held,  that  before  the  letters  of  the  wife  can  be  received, 
it  must  be  proved  that  they  were  written  prior  to  any  misconduct 
on  her  part,  and  when  there  existed  no  ground  for  imputing 
collusion.^  If  written  after  an  attempt  of  the  defendant  to  accom- 
plish the  crime,  the  letters  are  inadmissible.^  Nor  are  the  dates 
of  the  wife's  letters  to  the  husband  received  as  sufllicient  evidence 
of  the  time  when  they  were  written,  in  order  to  rebut  a  charge  of 
cruelty  on  his  part ;  because  of  the  danger  of  collusion."     So,  also, 

belief  of  men,  as  to  matters  of  which  the^  exclamations,  and  expressions  as  usually 

iTaVenOt  personal  klio\i?T?n'|e7Ts'reasoniV  and  naturally  accomjiany  andturnish  evi- 

bly  supposed  to  be  affected  by  tlie  opi_ii-  deiice  of  a  /./vw/./  existing'  pain  or  malady, 

ions  of  others  who  are  about  them.     See  Bacon  i\  Cliarlton,  7  C'ush.  581,  oSO.] 
also  Carpenter  c.  Leonard,  13']VlTen,  32;  *  Trelawney  c.  Coleman,  2  Stark.  K. 

and  Wliitcher  ;•.  Shuttuck,  lb.  ol'J.J  191;  1  Barn.  &  Aid.  UO,  s.  c. ;  Wdlis  v. 

1  [*reoi)le  /•.  Sliea,  »  Cal.  5oS.  Barnard,  «  Binfj.  o7G  ;   Klsani  r.  Faucett, 

2  Sheen  v.  Bumpstead,   10  Jur.  n.  s.  2  Ksp.  5(12:  Winter  r.  Wroot,  1  M.  &  Kob. 
242;  Exch.  Cham.;   s.  c.  2  H.  &  C.  193.]  404;    Gilchrist    v.   Bale,   8   Watts,   ooo ; 

=*  [Such  evidence,  however,  is  not  to  be  Thompson  i:  Freeman,  Skin.  402. 
extended  bevond  the  necessity  on  which  "  Edwards  c.  Crock,  4  Ksp.  39;  Tre- 

the  rule  is  founded.     Any  thinj,' in  the  na-  lawney  c.   Coleman,   1   Barn.  &  Aid.  90; 

ture   of  narration   or   statement  is  to  be  1  I'hil.  Evid.   190. 

carefully  excluded,  and  the  testimony  is  "  Wilton  c.  Webster,  7  Car.  &  P.  198. 

to  be  contiued  strictly  to  such  comphdnts,  "  lloulision  v.  Smyth,  2  Car.  &  P.  22; 


118  LAW   OF   EVIDENCE.  [PART   II. 

the  representation  byti  side  person,  of  the  nature,  symptoms,  and 
effects  of  the  malady,  under  which  he  is  laboring  at  the  time,  are 
received  as  original  evidence.     If  made  to  a  medical  attendant, 
they  are  of  greater  weight  as  evidence ;  b\it,  if  made  to  any  other 
person,  they  are  not  on  that  account  rejected.^     In  prosecutions 
for  rape,  too,  where  the  party  injured  is  a  witness,  it  is  material 
-■to  show  that  she  made  complaint  of  the  injury  while  it  was  yet 
recent.     Proof  of  such  complaint,  therefore,  is  original  evidence ; 
but  the  statement  of  details  and  circumstances  is  excluded,  it 
being  no  legal  proof  of  their  truth.^ 
j      §  103.  To  this  head  may  be  referred  much  of  the  evidence  some- 
;  times  termed  "  hearsay,"  which  is  admitted  in  cases  of  pedigree. 
Tlic  priiicii)al  question,  in  these  cases,  is  that  of  the  parentage, 
or  descent  of  the  individual ;  and  in  order  to  ascertain  this  fact, 
it  is  material  to  know  how  he  was  acknowledged  and  treated  by 
those  who  were  interested  in  him,  or  sustained  towards  him  any 
relations  of  blood  or  aflfmity.      It  was  long   unsettled,  whether 
any  and  what  kind  of  relation  must  have  subsisted  between  the 
person  speaking  and  the  person  whose  pedigree  was  in  question ; 
and  there  are  reported  cases,  in  which  the  declarations  of  servants, 
and  even  of  neighbors  and  friends,  have  been  admitted.     But  it 
is  now  settled,  that  the  law  resorts  to  hearsay  evidence  in  cases 
of  pedigree,  upon  the  ground  of  the  interest  of  the  declarants  of 
the  person  from  whom  the  descent  is  made  out,  and  their  con- 
sequent interest  in  knowing  the  connections  of  the  family.     The 
rule  of  admission  is,  therefore,  restricted  to  the  declarations  of 
deceased  persons,  who  were  related  by  blood  or  marriage  to  the 
person,  and,  therefore,  interested  in  the  succession  in  question.^ 

Trolawnevr.  Coleman,  1  Barn.  &  Alil.  90.  for   the   plaintiff.     Bacon   v.    Charlton,  7 

[And  where  in  an  action  a,i,^ainst  a  hns-  Cush.  r)8I,  5b6.     State  y.  Howard,  32  Vt. 

hand  tor  the  hoard  of  hi*  wife,  the  plaintiff  380;  Kent  v.  Lincoln,  Ih.  59L] 

had  introduced  testimony  tending  to  show  "^  1  East,  P.  C.  444,  445;  1  Hale,  P.  C. 

a  certain  state  of  mind  on  the  part  of  the  G33 ;  1  Russell  on  Crimes,  565;    Hex  v. 

witc,  her  declarations  to  third  jjcrsons  on  Clarke,  2  Stark.  R.  241 ;  Langhlin  v.  The 

tliat  subject,  expressive  of  her  mental  feel-  State,- 18  Ohio,  99.     In  a  prosecution  for 

i  ings,  are  admissible  in  tavor  of  tlie  hus-  conspiring  to  assemble  a  large  meeting, 

band.    Jacobs  c  Whitcomb,  10  Cush.  255.]  for  the  purpose  of  exciting  terror  in  the 

i  Aveson  ;•'.    J^ord    Kinnaird,   0    East,  comnnmity,  the  complaints  of  terror,  made 

188;  1  Ph-  l'>vid.  191  ;  Grey  v.  Young,  4  by  jiersons  professing  to  be  alarmed,  were 

McCord,  38  ;  (iilchrlst  v.  Bale,  8  Watts,  permitted  to  be  proved  by  a  witness,  who 

355.     [In  an  action  for  an  injury  caused  lieard  them,  without  calling  the  persons 

by  a  defect  in  the  highway,  groans  or  e.\-  themselves.     Regina  i'.  Vincent  et  al.  9  C. 

clamations  uttered  by  the  plaintiff  at  any  &  P.  275.     See  Bacon  v.  Charlton,  7  Cush. 

time,  expressing  premit   pain  or  agony,  581.     ' 

and  referring  by  word  or  gesture  to  the  ^  Vowles  v.  Young,  13  Ves.  140,  147 ; 

seat  of  the  pain,  are  competent  testimony  Goodright  v.   Moss,   Cowp.   591,  594,  as 


CHAP,  v.] 


HEARSAY. 


119 


And  (jeneral  repute  in  the  famil//,  proved  ))y  the  testimony  of  a 
surviving  member  of  it,  has  been  considered  as  falling  within  the 
rule.i 

§  101.  The  term  pedigree,  however,  embraces  not  only  descent 
and  relationship,  but  also  the  facts  of  hirtji^  '!l^^^Z''''^iU^'>.^^}}^ }^^Pb 
aiid  tlie  times_\vheirtlicse"_eventg  hap])ened.  These  facts,  there- 
fore, may  be  proved  in  the  manner  above  mentioned,  in  all  cases 
where  they  occur  incidentally,  and  in  relation  to  pedigree.  Thus, 
an  entry  by  a  deceased  parent,  or  other  relative,  made  in  a  Bible, 
family  missal,  or  any  other  book,  or  in  any  document  or  paper, 
stating  the  fact  and  date  of  the  birth,  marriage,  or  death  of  a  child, 
or  other  relative,  is  regarded  as  a  declaration  of  such  parent  or 
relative,  in  a  matter  of  pedigree.^     So  also,  the  correspondence 


expounded  by  Lord  Eldon,  in  Wliitelocke 
V.  Baker,  13  Ves.  51-t;  Johnson  v.  Law- 
son,  2  Wnvj..  8G;  IMonkton  v.  Attorney- 
General,  o  Kuss.  &  My.  147, 150  ;  Crease 
IK  Barrett,  1  Cronip.  JMees.  &  Kos.  Dl'J, 
928;  Casey  v.  O'Shaunessy,  7  Jur.  1140; 
Gregory  v.  Baugh  4  Hand.  G07  ;  Jewell  v. 
Jewell,  1  How.  s.  c.  Kep.  231 ;  17  Peters, 
213,  s.  c. ;  Kaywood  v.  Barnett,  3  Dov.  & 
Bat.  91 ;  Jackson  v.  Browner,  18  Johns. 
37  ;  Chapman  v.  Chapman,  2  Conn.  347  ; 
Waldron  v.  Tuttle,  4  N.  Hamp.  371.  The 
declarations  of  a  mother,  in  disparage- 
ment of  the  legitimacy  of  her  child,  have 
been  received  in  a  question  of  succession, 
llargrave  o.  Ilargrave,  2  C.  &  K.  701. 
[Mooei-s  V.  Bunker,  U  I'oster  (N.  H.),  420; 
Emerson  v.  White,  lb.  482  ;  Kelley  i-.  Mc- 
Guire,  15  Ask.  555.] 

1  Doe  V.  Griffin,  15  East,  29.  There  is 
no  valid  objection  to  such  evidence,  be- 
cause it  is  hearsay  upon  hearsay,  provided 
all  the  declarations  are  within  the  family. 
Thus,  the  declarations  of  a  deceased  lady, 
as  to  what  had  been  stated  to  iier  by  her 
liusband  in  his  lifetime,  were  admitted. 
iJoe  V.  llandall,  2  M.  &  P.  2U ;  Monkton 
V.  Attorney-General,  2  Kuss.  &  My.  105 ; 
Bull.  X.  P.  295;  Elliott  v.  PiersoU,  1 
Peters,  328,  337.  It  is  for  the  judge  to  de- 
cide, whether  the  declarants  were  "  mem- 
bers of  the  family  so  as  to  render  'their 
evidence  admissible  ;  "  and  for  the  jurj- 
to  settle  the  tact  to  which  their  declara- 
tions relate.  Doe  c.  Davis,  11  Jur.  007; 
10  Ad.  &  El.  314,  N.  s.  [See  also  Copes 
V.  Pearce,  7  Gill,  247  ;  Clements  v.  Hunt, 
1  Jones,  Law  (N.  C),  400.]  In  regard  to 
the  value  and  weight  to  be  given  to  this 
kind  of  evi^leiice,  the  following  observa- 
tions of  Lord  Langdalc,  M.4^,  are  entitled 
to  great  consideratiou.  "  In  cases,"  said 
he,  "  where  the  whole  evidence  is  tradi- 


tionary, when  it  consists  entirely  of  family 
reputation,  or  of  statements  of  declarations 
made  by  persons  who  died  long  ago,  it 
must  be  taken  with  such  allowances,  and 
also  with  such  suspicions,  as  ought  rea- 
sonably to  be  attached  to  it.  When  fam- 
ily rep.utation,  or  declarations  of  kindred 
made  in  a  family,  are  the  subject  of  evi- 
dence, and  the  rei)utation  is  of  longstand- 
ing, or  the  declarations  are  of  old  date,  the 
memory  as  to  the  source  of  the  reputation, 
or  as  to  the  persons  who  made  the  decla- 
rations, can  rai-ely  be  characterized  by  per- 
fect accuracy.  What  is  true  may  become 
blended  with,  and  scarcely  distinguish- 
able from  something  that  is  erroneous  ; 
the  detection  of  error  in  any  part  of  the 
statement  necessarily  throws  doubt  upon 
the  whole  statement,  and  yet  all  that  is 
material  to  the  cause  may  be  perfectly 
true  ;  and  if  the  whole  be  rejected  as  tiilse, 
because  error  in  some  part  is  proved,  the 
greatest  injustice  may  be  done.  All  tes- 
timony is  subject  to  such  errors,  and  testi- 
mony of  this  kind  is  more  particularly  so  ; 
and  "however  ditKcult  it  may  be  to  discover 
the  truth,  in  cases  where  "there  can  be  no 
demonstration,  and  wliere  every  conclu- 
sion which  may  be  drawn  is  subject  to 
some  doubt  or  uncertainty,  or  to  some 
opposing  i)robal)ilities,  the  courts  are  bound 
to  adopt  tlie  conclusion  which  appears  to 
rest  on  the  most  solid  foundation."  See 
Johnson  v.  Todd,  5  Beav.  599,  000. 

-  The  Berkley  I'eerage  case,  4  Cainpb. 
401,  418;  Doe  v.  Bray,  8  B.  &  C.  813; 
Monkton  v.  The  Attorney-General,  2  Buss. 
&  My.  147;  Jackson  v.  Cooley,.8  Johns. 
128,  131,  per  Tliompsou,  J.  ;  Douglas  v. 
Saunderson,  2  Dall.  110  ;  The  Slane  I'eer- 
age  case,  5  Clark  &  Ein.  24 ;  Carskadden 
r.  Poorman,  10  Watts,  82;  The  Sussex 
I'eerage  case,  11  Clark  li.  Ein.  85;  Wat- 


/ 


120  LAW   OF   EVIDENCE.  [PART   II. 

of  deceased  members  of  the  family,  recitals  iii  family  deeds,  such 
as  marriage  settlements,  descriptions  in  wills,  and  other  solemn 
acts,  are  original  evidence  in  all  cases,  where  the  oral  declara- 
tions of  the  parties  are  admissible.^  In  regard  to  recitals  of 
pedigree  in  bills  and  answers  in  Chancery,  a  distinction  has  been 
taken  between  those  facts  which  are  not  in  dispute  and  those 
which  are  in  controversy ;  the  former  being  admitted,  and  the 
latter  excluded.^  Eecitals  in  deeds,  other  than  family  deeds,  are 
also  admitted,  when  corroborated  by  long  and  peaceable  possession 
according  to  the  deed.^ 

[  *  §  104a.  It  seems  to  be  requisite,  in  regard  to  the  admissibility 
of  evidence  of  reputation  to  prove  a  marriage,  that  the  persons 
from  whom  the  information  is  derived  sliould  be  shown  to  have 
deceased,  or  that  'the  reputation  should  be  known  to  the  witness 
to  have  been  general  among  the  connections  in  the  family,  and  that 
there  should  have  been  no  controversy  in  regard  to  it.  For  after 
the  existence  of  Us  ynota  it  is  not  competent  to  give  evidence  of 
such  reputation ;  and  it  will  not  be  allowed  to  give  such  evidence 
upon  proof  that  such  suit  was  fraudulently  instituted  for  the  pur- 
>j)Ose  of  excluding  the  testimony.  But  the  existence  of  a  former 
suit  between  the  same  parties  will  not  exclude  such  reputation, 

son  V.  Brewster,  1  Barr,  381.     And  in  a  tail  male,  and  declared  themselves  heirs  of 

recent  case  this  doctrine  lias  been  thought  the  bodies  of  his  daughters,  who  were  dev- 

to  warrant  the  admission  of  declarations,  isees    in    remainder ;    and   in    Slaney   v. 

made  by  a  deceased  person,  as  to  where  Wade,  1  My  hie  &  Craig,  338,  the  grantor 

his   tainilv   came   from,  where   he   came  was  a  mere  trustee  of  the  estate,  not  rela- 

frora,  and  of  what  place  his  father  was  ted  to  the  parties.     See  also  Jackson  v. 

designated.     Shields  ;.'.  Boucher,  1  DeGex  Cooley,  8  Johns.  128  ;  Jackson  v.  Russell, 

&  Smale,  40.     [*  So  also  the  common  rep-  4  Wend.  .543  ;  KeUer  v.  Nutz,  5  S.  &  11. 

utation  in  tlie  family  is  sufficient  evidence  251.     If  the  recital  in  a  will  is  made  after 

of  tlie  death  of   a  person.     Anderson  v.  the  fact  recited  is  in  controversy,  the  will 

Parker,  6   Cal.    197.     See   also   Redfiold  is  not  admissible  as  evidence  of  that  fact, 

on  Wills,  Tart  2,  §  1.     So  also  in  regard  The  Sussex  Peerage  case,  11  Clark  &  Fin. 

to   the    time   of  one's  death.     Morrill  v.  85. 

Foster,  33  N.  H.  379.]  -  Phil.  &  Am.  on  Evid.  231,  232,  and 

1  Bull.  N.  P.  233 ;  Neal  v.  Wilding,  2  the    authorities    there    cited.      Ex  parte 

Str.  1151,  per  Wright,  J. ;  Doe  v.  E.  of  affidavits,  made  several  years   before,  to 

Pembroke,  11  East,  503;  Whltelockc  v.  prove    pedigree    by  official  requirement. 

Baker,  13  Ves.  514  ;  Elliott  v.  Piersoll,  1  and  prior  to  any  Us  mota,  are  admissible. 

Pet.  328 ;  1  Pii.  Evid.  21G,  217,  and  Peer-  Hurst  v.   Jones,  Wall,  Jr.    373,   App.   3. 

age  cases  tliere  cited.    In  two  recent  cases,  As  to  the  effect  of  a  lis  mota  upon  tlie  ad- 

the  recitals  in  tlie  deeds  were  held  adinis-  missibility  of  declarations  and  reputation, 

sible  only  against  tlie'parties  to  the  deeds  ;  see  infra,  §  131-134. 

but  in  neither  of  those  cases  was  the  party  ^    Stokes    v.    Daws,    4    Mason,    268. 

proved  to  have  been  related  to  those  whose  [*  Common  practice,  in  regard  to  one's 

pedigree  was  recited.     In  Fort  v.  ('iarke,  name,  is  not  objectionable  on  the  ground 

1  Russ.  601,  the  grantors  recited  the  death  of  hearsay.     Willis  v.  Quimby,  11  Foster 

of  the  sons  of  John  Cormick,  tenants  in  485.] 


CHAP,  v.]  HEARSAY.  121 

unless  tlic  same  point  were  brouglit  into  controversy,  which  it  is 
now  sought  to  establish.^] 

§  105.  Inscriptions  on  tombstones,  and  other  funeral  monuments, 
engravings  on  rings,  inscriptions  on  family  portraits,  charts  or 
pedigree,  and  the  like,  are  also  admissible,  as  original  evidence 
of  the  same  facts.  Those  which  are  proved  to  have  been  made  by, 
or  under  the  direction  of  a  deceased  relative,  are  admitted  as  his 
declarations.  But  if  they  have  been  publicly  exhibited,  and  were 
well  known  to  the  family,  the  publicity  of  them  su})[jlies  the  defect 
of  proof,  in  not  showing  that  they  were  declarations  of  deceased 
members  of  the  family ;  and  they  are  admitted  on  the  ground  of 
tacit  and  common  assent.  It  is  presumed,  that  the  relatives  of  the 
family  would  not  permit  an  inscription  without  foundation  to 
remain ;  and  that  a  person  would  not  wear  a  ring  with  an  error 
on  it.^  j\rural  and  other  funeral  inscriptions  arc  provable  by 
copies,  or  other  secondary  evidence,  as  has  been  already  shown .^ 
Their  value,  as  evidence,  depends  much  on  the  authority  under 
which  they  were  set  up,  and  the  distance  of  time  between  their 
erection  and  the  events  they  commemorate.* 

§  .106.  Under  this  head  may  be  mentioned  family  co7iduct,  such 
as  the  tacit  recognition  of  relationship,  and  the  disposition  and 
devolution  of  property,  as  admissible  -evidence,  from  which  the 
opinion  and  belief  of  the  fiimily  may  be  inferred,  resting  ultimately 
on  the  same  basis  as  evidence  of  family  tradition.  Thus  it  was 
remarked  by  Mansfield,  C.  J.,,  in  the  Berkley  Peerage  case,^  that, 
"  if  the  father  is  proved  to  have  brought  up  tlic  party  as  his 
legitimate  son,  this  amounts  to  a  daily  assertion  that  the  son  is 
legitimate."  And  Mr.  Justice  Ashhurst,  in  another  case,  remarked 
that  the  circumstance  of  the  son's  taking  tlie  name  of  the  person 
with  whom  his  mother,  at-  the  time  of  his  birth,  lived  in  a  state 

1  [*  Butler  r.  ilountgarrett,  7  ITo.  Lds.  bearings,  proved  to  have  existed  while  the 
case,  GS3  ;  blieddeii  v.  Patrick,  2  S\v.  &  heralds  had  the  po.ver  to  punish  usurpa- 
Tr.  170.]  tions,   possessed    an  othcial    weight   and 

2  Per  Lord  Erskine,  in  Vowlcs  v.  credit.  Hut  tiiis  authority  is  tiiouglit  to 
Young,  13  Ves.  144  ;  Monkton  v.  The  At-  liave  ceased  with  the  last  heraUl's  visita- 
torney-Geueral,  '1  Rus.  &Mylne,  147  ;  Kid-  tion,  in  1G86.  See  1  Phil.  Evid.  224.  At 
ney  v.  Cockt)urn,  Id.  107.  The  Canioys  present,  they  amount  to  no  more  than 
Peerage,  li  CI.  &  Fin.  781).  An  ancient  family  declarations.  [*  See  Shrewsbury 
pedigree,   purporting   to    have   been   col-  Peerage,  7  IIo.  Lds.  Cas.  1.] 

lected  from  /lisfon/,  as  well  as  from  other  ^  ;6'»/"rt,  §  ',)4.     [See  also  Eastman  v. 

sources,  w;is  hekl  adinissilile,  at  least  to  Martin,  I'J  N.  11.  l.y_'.] 

show  the  rclationshi])  of  jiersons  described  ■•  Some  remarkal)le  mistakes  of  fact  in 

by  the  framcr  as  living,  and  therefore  to  such  inscriptions  are  mentioned  in  1  Phil, 

be  presumed  as  known  to  him.     Davies  v.  Evitl.  222. 

Lowndes,  7  Scott,  N.  11.  141.     Armorial  '^  4  Campb.  416. 
VOL.  I.                                                        11 


122  LAW   OF   EVIDENCE.  [PART  II. 

of  adultery,  which  name  he  and  his  descendants  ever  afterwards 
retained,  "  was  a  very  strong  family  recognition  of  his  illegiti- 
macy."^ So,  the  declarations  of  a  person,  since  deceased,  that 
he  was  going  to  visit  liis  relatives  at  such  a  place,  have  been  held 
admissil)le  to  show  that  the  family  had  relatives  there.^ 

§  107.  It  is  frequently  said,  that  general  reputation  is  admissible 
to  prove  tlie  fact  of  the  inarr'uKje  of  the  parties  alluded  to,  even  in 
ordinary  cases,  where  pedigree  is  not  in  question.  In  one  case, 
indeed,  such  evidence  was,  after  verdict,  held  sufficient,  primd 
facie,  to  warrant  the  jury  in  finding  the  fact  of  marriage,  the 
adverse  party  not  having  cross-examined  the  witness,  nor  con- 
troverted the  fact  by  proof.^  But  the  evidence  produced  in  tlie 
other  cases,  cited  in  support  of  this  position  cannot  properly  be 
called  hearsay  evidence,  but  was  strictly  and  truly  original  evi- 
dence of  facts,  from  which  the  marriage  might  well  be  inferred ; 
such  as  evidence  of  the  parties  being  received  into  society  as  man 
and  wife,  and  being  visited  by  respectable  families  in  the  neighbor- 
hood, and  of  their  attending  church  and  public  places  togetlier  as 
such,  and  otherwise  demeaning  themselves  in  public,  and  address- 
ing each  other  as  persons  actually  married.* 

§  108.  Tlicre  are  other  declarations,  which  are  admitted  as 
original  evidence,  being  distinguished  from  hearsay  by  their  con- 
nection with  the  principal  flict  under  investigation.  The  affairs 
of  men  consist  of  a  complication  of  circumstances,  so  intimately 
interwoven  as  to  be  hardly  separable  from  each  other.  Each  owes 
its  birth  to  some  preceding  circumstances,  and,  in  its  turn,  be- 
comes the  prolific  parent  of  others  ;  and  each,  during  its  existence, 
has  its  inseparable  attributes,  and  its  kindred  facts,  materially 
affecting  its  character,  and  essential  to  be  known,  in  order  to 
a  right  understanding  of  its  nature.  These  surrounding  circum- 
stances, constituting  parts  of  the  res  gestce,  may  always  be  shown 
to  the  jury,  along  witli  the  principal  fact;  and  their  admissibiUty 

1  Goodriglit  v.  Saul,  4  T.  R.  356.  »  Evans  v.  Morgan,  2  C.  &  J.  453. 

2  Kisliton  '•.  Nesliitt,  2  M.  &  Rob.  252.  *  1  Phil.  Evid.  234,235  ;  Hervey  i-.  Her- 
[  *  Tiiese  (iL-clarations  embrace  wliat  is  vey,  2  W.  Bl.  877  ;  Birt  i:  Barlow,  Doug, 
said  bv  liushanil  or  wife,  as  to  the  connec-  171,174;  Read  r.  I'asser",  1  Esp.  213; 
lions  'in  tiie  faniilv  of  the  other,  but  not  Leader  r.  Barry,  Id.  353  ;  Doe  ('.Fleming, 
those  maile  by  mcmlier.s  of  the  family  of  4  Bing.  2m;  Smith  v.  Smith,  1  riiilhm. 
one  as  to  tiie  family  of  the  other.  And  let-  2U4  ;  Hammick  v.  Bronson,  5  Day,  290, 
ters  maybe  produced  to  show  how  the  293;  /»  ?e  Taylor,  9  Paige,  611  [2  (Jreenl. 
wife  was  addressed  by  members  of  her  Evid.  (7th  ed.)  §  461-4G2J. 

own  family.     Shrewsbury  Peerage  case, 
7  llo.  Ld'sCas.  l.J 


CHAP,  v.] 


HEARSAY. 


123 


is  determined  by  the  judge,  according  to  the  degree  of  their 
reUition  to  that  fact,  and  in  the  exercise  of  his  sound  discretion ; 
it  being  extremely  difficult,  if  not  impossible,  to  bring  this  class 
of  cases  within  \\\g  limits  of  a  more  particular  description.^  The 
principal  points  of  attention  arc,  wlicthcr  the.  circumstance^,  and 
declarations  offered  in  proof  were  contemporaneous  with  the  main 
fact  'under  consideration,  and  whether  they  were  so  connected 
with  it  as  to  illustrate  its  character.^     Thus,  in  the  trial  of  Lord 


1  Per  Park,  J.,  in  K.awson  v.  Haigh,  2 
Bing.  104;  Uulley  y.  Gyde,  9  Biiig.  349, 
352 ;  Pool  r.  Bridges,  4  Picli.  379 ;  Allen 
V.  Duncan,  11  Pick.  309  [liaynes  r.  But- 
ter, •24  Pick.  242;  Gray  v.  Cioudrich,  7 
Jolins.  95 ;  Bank  of  Woodstock  v.  Clark, 
25  Vt.  308;  Mitchura  v.  State,  11  Geo. 
615;  Tonikies  v.  Reynolds,  15  Ala.  109; 
Cornelius  v.  The  State,  7  Eng.  782. 

On  the  trial  of  an  action  brought  by  a 
jirincipal  against  an  agent  wlio  ha<l  charge 
of  certain  business  of  the  principal  for 
many  years,  to  recover  nionej'  received 
by  the  defendant  from  clandestine  sales 
of  property  of  the  plaintill"  and  money  of 
the  plaintiff  fraudulently  t^iken  by  the 
defendant,  eviilence  that  the  defendant 
at  the  time  of  entering  the  plaintiti's 
service  was  insolvent,  and  that  lie  had 
since  received  only  a  limited  salary  and 
some  small  additional  comi)ensation,  and 
that  sub-'^eipient  to  tlie  time  of  his  al- 
leged misdoings,  and  during  the  period 
specified  in  the  writ,  he  was  the  owner  of 
a  large  property,  far  exceeding  the  aggre- 
gate of  all  his  salary  and  receipts  while  in 
the  plaintiff's  service,  is  admissible  as 
having  some  tendency  to  prove,  if  the 
jury  are  satisfied  by  other  evidence,  that 
money  had  been  tiilven  from  the  ])laintiff 
by  some  one  in  his  employ,  that  the  de- 
fendant is  the  guilty  person ;  such  facts 
being  in  nature  of  res  (jeslni  acconipan.ving 
the  very  acts  and  transactions  of  the  de- 
fendant under  investigation,  and  tending 
to  give  them  character  and  significance. 
And  the  declarations  of  the  defendant 
concerning  his  property  and  business  trans- 
actions, made  to  third  persons,  in  the  ab- 
sence of  the  plaintiff  or  his  agents,  are 
inadmissible  to  rebut  such  evidence.  Bos- 
ton &  W.  \i.  \\.  Corp.  c.  Dana,  1  Grav, 
m,  101,  103  [*llackett  v.  King,  8  Allen, 
144].  See  also  Commonwealth  v.  Mont- 
gomery, 11  Met.  534.  The  declaration  of 
a  person  who  is  wounded  and  bleeding, 
that  the  defendant  has  stabbed  her,  made 
innnediately  after  the  occurrence,  though 
with  such  an  interval  of  time  as  to  allow 
lier  to  go  up-stairs  from  her  room  to  an- 
otlier  room,  is  admissible  iu  evidence  af- 


ter her  death,  as  a  part  of  the  res  fjexfce. 
Commonwealth  v.  Mcl'ike,  3  Cush.  181.] 

-  Declarations,  to  become  i)art  of  th« 
j-es  <iislii>,  "  must  have  been  made  at  thej 
time  of  the  act  done,  which  they  are  sui>-i 
posed  to  characterize ;  and  have  been  well| 
calculated  to  unfold  the  nature  and  quali-j 
ty  of  the  facts  they  were  intended  to  ex-| 
plain,  and  so  to  harmonize  with  them,  asj 
obviously  to  constitute  one  transacti(jn."i 
Per  llosmer,  C.  J.,  in  Enos  v.  Tuttle,  3 
Conn.  B.  250.  And  see  In  re  Taylor,  9 
Paige,  611 ;  Carter  v.  Buchannon,  3  Kel- 
ley,  B.  513;  Blood  v.  Bideout,  13  Met. 
237  ;  Boyden  v.  Burke,  14  How.  .s.  c.  575. 
[*  Declarations  to  l)e  admissible  must  b^ 
contemporaneous  with  tlie  act.  Faner  v. 
Turner,  1  Clarke  (Iowa),  53;  and  they 
must  tend  to  characterize  the  act ;  Elkins 
V.  Hamilton,  20  Vt.  Rep.  627 ;  but  if  not 
consistent  with  the  obvious  character  of 
the  act,  they  will  not  control  it.  State  v.  ^ 
Shellidy,  8  Clarke  (Iowa),  477.]  But  ^ 
declarations  explanatory  of  a  previous 
fact,  e.  </.  how  the  party's  hands  became 
bloody,  are  inadmissible.  Scraggs  v.  The 
State,  8  Smed.  &  Marsh.  722.  So,  where 
a  party,  on  removing  an  ancient  fence,  put 
down  a  stone  in  one  of  the  ])ost-lu)les,  and 
the  next  day  declared  that  he  i)laced  it 
there  as  a  boundary  ;  it  Mas  held  that  this 
declaration,  not  constituting  part  of  the 
act  done,  was  inadmissible  in  evidence  in 
liis  favor.  Noyes  r.  AA'ard,  19  Conn.  250. 
See  Corinth  r.  Lincoln,  34  Maine,  310. 
In  an  action  by  a  bailor  against  the  bailee, 
for  loss  by  his  negligence,  the  declarations 
of  the  bailee,  contemporaneous  with  the 
loss,  are  admissible  in  liis  fiivor,  to  show  \ 
tlie  nature  of  the  lo'3^."St(1ry"on  Bailm. 
§  339,  cites  Tompkins  v.  Saltmarsh,  14  S.  & 
R.  275;  Beardslee  v.  Richardson,  11  Wend.  , 
25;  Doorman  c.  Jenkins,  2  Ad.  &  El.  80. 
So,  in  a  suit  for  enticing  away  a  servant, 
his  declarations  at  tlie  time  of  leaving  his 
master  are  admissible,  as  jiart  of  the  as 
qistii\  to  show  the  motive  of  his  departure. 
Hadley  v.  Carter,  8  ^J.  Hamp.  40.  [In 
Lund  V.  Tyngsborough,  9  Cush.  36,  which 
was  an  action  for  injuries  ret-eived  through 
a  defect  in  a  highway,  during  the  tiial  at 


124 


LAW   OF   EVIDENCE. 


[part  II. 


George  Gordon  for  treason,  the  cry  of  tlie  moli,  who  accompanied 
the  prisoner  on  his  enterprise,  was  received  in  evidence,  as  forming 
part  of  the  7-es  genUe,  and  showing  the  cliaracter  of  the  principal 
fact.^  So  also,  where  a  person  enters  into  land  in  order  to  take 
advantage  of  a  forfeiture,  to  foreclose  a  mortgage,  to  defeat  a  dis- 
seisin,^  or  the  like ;  or  changes  his  actual  residence,  or  domicile, 
or  is  upon  a  journey,  or  leaves  his  home,  or  returns  thither,  or 
remains  abroad,  or  secretes  himself;  or,  in  fine,  does  any  other 
act,  material  to  be  understood ;  his  declarations,  made  at  the  time 
of  the  transaction,  and  expressive  of  its  character,  motive,  or 
object,  are  regarded  as  "  verbal  acts,  indicating  a  present  purpose 
and  intention,"  and  are  therefore  admitted  in  proof  like  any  other 
material  facts.fj  So,  upon  an  inquiry  as  to  the  state  of  mind, 
sentiments,  or  dispositions  of  a  person  at  any  particular  period, 
his  declarations  and  conversations  are  admissible.'^  They  are 
parts  of  the  res  gestce.^ 


^^ 


Nisi  Priiis,  a  witness  was  permitted  to  say 
in  reply  to  the  question,  "  At  the  time 
■when  he  (the  doctor  wlio  died  before  the 
triid)  was  called,  and  while  engaged  in 
such  exauunation,  what  did  he  say  con- 
cerning such  injury,  its  nature  and  ex- 
tent '!  "  that  "I  heard  him  say  that  it  was 
a  very  serious  injury  —  that  it  was  more 
injured  than  though  the  bone  was  broken," 
&c.  It  did  not  apjiear  how  long  it  was 
after  the  accident  happened  when  these 
declarations  were  made.  The  full  bench 
decided  that  the  evidence  was  wrongly 
admitted,  and  in  giving  the  opinion  of  the 
court,  rietcher,  J.,  states  at  some  length 
the  rules  of  law  applicable  to  the  admissi- 


1  M.  &  M.  338  ;  Ridley  v.  Gvde,  9  Bing. 
349,  352;  Smith  v.  Cramer,  I'Bing.  N.  c. 
585 ;  Gorliarn  ik  Canton,  6  Greeid.  2G6 ; 
Fellowes  v.  Wilhamson,  1  M.  &  J\I.  306; 
Vacher  v.  Cocks,  Id.  353;  1  B.  &  Ad. 
135;  Thorndike  v.  City  of  Boston,  1  Met. 
242  ;  Carroll  v.  The  State,  3  Humph.  315; 
Kilburn  v.  Bennet,  3  Met.  199;  Salem  v. 
Lynn,  13  I\Iet.  544;  Porter  v.  Ferguson, 
4  Flor.  I^.  104. 

*  Barthelemy  v.    The  People,   &c.   2 
Hill,N.  Y.  11.  248,257;  Wetmore  v.  Mell,v-i 
1  Ohio,  X.  s.  2(3  [supra,  §  102].  N* 

"  [It  is  only  when  the  thing  done  is 
equivocal,  and  it  is  necessary  to  render  its 
meaniutj  clear,  and  expressive  of  a  motive 


bility  of  this  class  of  testimony  [*  which     or  object,  that  it  is  competent  to  })rove  >^ 


the  profession  will  find  a  valuable  sum- 
mary of  the  law  upon  the  point]. 

1  21  Howell's  St.  Tr.  542.  [In  an  in- 
dictment for  keeping  a  house  of  ill  fame, 
evidence  of  conversations  iicid  hymen  im- 
mediately upon  coming  out  of  the  house, 
and  u])on  the  sidewalk  in  front  thereof, 
but  not  in  presence  of  the  defendant,  nor  of 
any  of  tlie  inmates,  as  to  what  had  taken 
place  in  the  house,  has  been  held  to  be  in- 
admissil)le  as  part  of  the  res  (jrstiE  and 
tending  to  show  the  character  of  the  visi- 
tors in  the  house.  Commonwealth  v.  liar- 
wood,  4  Gray,  41.] 

2  Co.  Litt.  49,  b,  24.5,  b;  Robinson  v. 
Swett,  3  Greenl.  316;  3  Bl.  Coram.  174, 
175. 

'^  Bateman  v.  Bailey,  5  T.  R.  512,  and 
the  observations  of  Mr.  Evans  upon  it  in 
2  Poth.  Obi.  App.  No.  xvi.  §  11  ;  Kawson 
V.  Haigli,  2  Bing.  99 ;  Newman  v.  Stretch, 


declarations  accompanying  it,  as  fallin 
within  the  class  of  ns  yeskn.  Bj-  Bigel.ow, 
J.,  in  Nutting  f.  Page,  4  Gray,  584.  Thus 
the  reasons  stated  by  the  master-work- 
man, wlien  building  a  dam,  lor  making  it 
lower  in  the  middle  than  at  either  end, 
are  not  competent  evidence  against  his 
employer  that  it  was  so  made;  nor  are 
the  instructions  given  by  the  owner  of  the 
dam  while  rebuilding  it,  to  mark  the 
height  of  the  old  dam  and  to  erect  the  new 
one  of  the  same  height.  Nutting  v.  I'age, 
vt  supra.  See  also  Carleton  i-.  Patterson,  9 
Foster  (N.  H.)  580.  The  conduct  and  e.x- 
elamations  of  jjassengers  on  a  railroad  at  the 
time  of  an  accident,  though  not  in  the  pres- 
ence of  the  party  receiving  an  injur}-,  are 
admissible  as  part  of  the  ?r.s  r/cstfe,  to  justify 
the  conduct  of  the  yiarty  injured.  Galena, 
&c.  R.  H.  Co.  V.  Fay,  16  111.  5.58.  A  letter 
which  is  i)art  of  the  res  (jestm,  is  admissible  in 


^ 


\ 


CHAP,  v.] 


HEARSAY. 


125 


I  [*  §  108a.  So  it  has  been  recently  held,  in  England,  that  it  is 
competent  for  the  plaintiff,  for  the  ])urpose  of  proving  upon  whose 
credit  the  goods  sued  for  were  sold,  to  put  in  evidence  a  letter 
written  by  himself,  at  the  time  the  bargain  was  made,  to  his  agent, 
desiring  him  to  inquire  as  to  the  credit  of  the  defendant,  of  a 
person  to  whom  the  person  receiving  the  goods  had  referred  him 
for  that  purpose,  and  stating  therein  that  the  defendant  was  the 
buyer.  And  it  was  further  considered,  that  the  jury  might  look 
at  the  whole  letter,  and  although,  in  itself,  it  was  not  evidence  of 
the  truth  oi'  the  facts  affirmed,  it  might  be  considered  as  cor- 
roborative of  the  i)laintiff's  version  of  the  transaction  .^ 

§  109.  In  regard  to  the  declarations  of  persons  in  possession 
of  land,  explanatory  of  the  character  of  their  possession,  there  has 
been  some  difference  of  ojnnion ;  but  it  is  now  well  settled,  that 
declarations  in  disparagement  of  the  title  of  the  declarant  are  admis- 
sible, as  original  evidence.  Possession  is  primd  facie  evidence  of 
seisin  in  fee-simple ;  and  the  declaration  of  the  possessor,  that  he 
is  tenant  to  another,  it  is  said,  makes  most  strongly  against  his 
own  interest,  and  therefore  is  admissible.^  But  no  reason  is  per- 
ceived, why  every  declaration  accompanying  the  act  of  possession, 
whether  in  disparagement  of  the  claimant's  title,  or  otherwise 
qualifying  his  possession,  if  made  in  good  faith,  should  not  be 
received  as  part  of  the  res  gestce ;  leaving  its  effect  t^i  be, governed  ^^^ 
by  otlicr  rules  of  evidence.^  ^i*  '"  '        ■        ^   %*  -M  ■'■• 


by 


evidence,  altlioiigli  tlie  writcrof  it  niiglit  be 
a  witness.  Koacli  v.  Learned,  37  Maine, 
110.  In  a  quostion  of  .<cttlenient  the  pau- 
per's declarations  when  in  the  act  of  re- 
movinu',  are  admissible.  Kielnnond  ;•. 
Thoniaston,  38  Maine,  232;  Cornville  v. 
Brighton,  3'J  lb.  333.  The  acts  and  say- 
ings of  a  constable  at  the  time  of  a  levy, 
are  admissible  as  part  of  the  ns  (/ista\u\ 
an  action  against  the  sureties  o7i  liis  bond 
tor  neglecting  to  make  a  return  thereof. 
Dobbs  t-\  Justices,  17  Geo.  624.] 

1  [*MiliK!  V.  Leisler,  7  H.  &  N.  786; 
s.  c.  8  Jur.  N.  s.  121 ;  Eastman  v.  Bennett, 
6  Wis.  232,  where  tlie  same  principle  is 
maintained.] 

'^  Teaceable  v.  "Watson,  4  Taunt.  16, 17, 
per  Manstiekl,  C.  J. ;  West  Cambridge  v. 
Lexington.  2  Pick.  536,  jier  Putnam,  J. ; 
Little  V.  Libby.  2  (Jreenl.  242 ;  Doe  v.  Pet- 
tett,  5  B.  &  Aid.  223  ;  Carne  v.  Nicholl,  1 
Bing.  N.  C.  430  ;  per  Lyndhurst,  C.  B.,  in 
Chambers  r.  Beiiiascoui,  1  ("romp.  &  .Jer. 
457  ;  Smith  o.  .Martin,  17  Conn.  K.  3'jy ; 
iii/'ni,  §  18 'J. 


3  Davies  r.  Pierce,  2  T.  R.  53  ;  Doe  v. 
Rickarbv,  5  Esp.  4;  Doe  v.  Payne,  1 
Stark,  li.  GU  ;  2  Poth.  on  Obi.  254,  App. 
Ko.  xvi.  §  11  ;  Pankin  v.  Tenbrook,  6 
Watts,  388,  3".iO,  per  Huston,  J. ;  Doe  v. 
Pettett,  5  H.  &  Aid.  223 ;  Peed  c.  Dickey, 
1  Watts,  152 ;  Walker  i\  Bmadstock,  1 
Esp.  458  ;  Doe  v.  Austin.  0  Ping.  41  ;  Doe 
V.  Jones,  1  Campb.  307  ;  Jackson  r.  Bard, 

4  Johns.  230,  234  ;  Weidman  r.  Kohr,  4  S. 
&  K.  174  ;  Gibl)lehouse  v.  Strong,  3  Kawle, 
R.  437 ;  Norton  r.  I'ettibone,  7  Conn.  K. 
310;  Snelgrove  v.  IMartin,  2  McCord,  241, 
243  ;  Doe  d.  Majoribanks  r.  Green,  1  Gow. 
P.  227 ;  Carue  r.  Nicoll,  1  Binsj;.  N.  C.  430; 
Davis  V.  Camjibell,  1  Iredell,  P.  482; 
Crane  v.  ^larshall,  4  Shepl.  27 ;  Adams  i\ 
Prench,  2  N.  llanip.  P.  287 ;  Treat  v. 
Strickland,  10  Shepl.  234  ;  Blake  i'.  White, 
13  N.  Hamj).  P.  267  ;  Doe  r.  Langfield,  16 
M.  ..<:  W.  407  ;  Baron  de  Bode's  case,  8  Ad. 
&  El.  243.  244,  n.  s.  ;  Abney  v-  Kings- 
land.  10  Ala.  P.  355;  Daggett  v.  Shaw, 

5  Met.  223;  [Bartlett  r.  Emerson.  7 
Gray,  174  ;  Ware  v.  Brookhouse,  lb.  454 ; 


11* 


126 


LAW   OF   EVIDENCE. 


[part  II. 


§  110.  It  is  to  be  observed,  that  where  declarations,  offered  in 
evidence,  are  merely  narrative  of  a  past  occurrence,  they  cannot 
T5e  received  as  proof  of  the  existence  oif  such  occurrence.  They 
must  Be^  concomitant  with  the  principal  act,  and  so  connected  with 
it  as  tt)  be  regarded  as  the  mere  result  and  consequence  of  the 
co-existing  motives,  in  order  to  form  a  proper  criterion  for  directing 
the  judgment,  which  is  to  be  formed  upon  the  whole  conduct.^ 
On  this  ground,  it  has  been  holdcn,  that  letters  written  during 
absence  from  home  are  admissible  as  origuial  evidence,  explana- 
tory of  the  motive  of  dei)arture  and  absence,  the  departure  and 
absence  bohig  regarded  as  one  continuing  act.^ 

§  111.  The  same  principles  apply  to  the  acts  and  declarations 
of  one  of  a  company  of  conspirators,  in  regard  to  the  common 
design  as  affecting  his  fellows.  Here  a  foundation  must  first  be 
laid,  by  proof,  sufficient  in  the  opinion  of  the  judge,  to  establish, 
primd  facie,  the  fact  of  conspiracy  between  the  parties,  or  proper 
to  be  laid  before  the  jury,  as  tending  to  establish  such  fact.     The 


Flagg  V.  Mason,  8  Gray,  55G] ;  [  *  Wood 
V.  Foster,  8  Allen,  24].  Stark  v.  Boswell, 
6  Hill,  N.  Y.  Rep.  405;  Pike  v.  Hayes,  14 
N.  llamp.  19 ;  Smith  v.  Powers,  15  N. 
Hauip.  546,  5Go  ;  [Marcy  v.  Stone,  8  Cush. 
4 ;  Stearns  v.  Hendersass,  9  lb.  497 ; 
Plim])ton  V.  Chamberlain,  4  Gray,  320 ; 
Ilvde  r.  Middlesex  Co.  2  Gray,  207  ;  Potts 
v."Everliart,  2(5  Penn.  St.  R.  498;  St. 
Clair  V.  Shale,  20  lb.  105 ;  Doe  v.  Camp- 
bell, 1  Ired.  482 ;  Brewer  v.  Brewer,  19 
Ala.  481.  A  declaration  by  a  tenant,  dead 
at  the  time  of  the  trial,  that  lie  was  not  en- 
titled to  connnon  of  pasture  in  respect  to 
his  farm,  is  not  admissible  against  iiis  re- 
versioner. Papendick  v.  Bridgwater,  80 
Eng.  Law  &  Eq.  298].  Accordingly,  it  has 
been  held,  that  a  statement  made  by  a  per- 
son not  suspected  of  theft  and  before  any 
search  made,  accounting  for  his  possession 
of  pro])erty  wliicli  he  is  afterwarcls  charged 
with  having  stolen,  is  admissible  in  his  fa- 
vor. Re.x  V.  Abraham,  2  Car.  &  K.  550. 
But  see  Smith  v.  Martin,  17  Conn.  R.  899. 
AVhere  a  party  after  a  post-nuptial  settle- 
ment mortgaged  the  same  premises,  it  was 
hekl  that,  as  his  declarations  could  bind 
liiui  only  while  the  interest  remained  in 
liim,  his  declarations,  as  to  the  consid- 
ation  paid  by  the  subsequent  purchaser, 
were  not  admissible  against  the  claimants 
under  the  settlement,  for  this  would  ena- 
ble him  to  cut  down  his  own  previous  acts. 
Doe  i\  Weblier,  8  Xev.  &  Man.  58i"..  [  *  And 
it  has  recently  been  hold  in  England,  Reg. 
V.  Birmingham,  5  L.  T.  n.  s.  809,  that  the 


oral  declaration  of  a  deceased  occupant  of 
premises,  that  he  occupied  the  .same  as 
tenant  at  a  rent  of  .£20  per  annum,  was 
admissible  to  prove  not  only  the  tact  of  the 
tenancy,  but  tiie  amount  of  the  rent.] 

1  2  Poth.  on  Obi.  by  Evans,  pp.  248,249, 
App.  No.  xvi.  §  11.  Ambrose  v.  Clendon, 
Cas.  temp  Hardw.  2G7  ;  Doe  v.  Webber,  1 
Ad.  &  El.  738.  In  Ridley  v.  Gyde,  9 
Bing.  849,  where  the  point  was  to  estab- 
lish an  act  of  bankrujitcy,  a  conversation 
of  the  bankru]it  on  the  20th  of  November, 
being  a  resumption  and  coulinuation  of  one 
which  had  been  begun,  but  broken  oft'  on  the 
25th  of  October  precedmg,  was  .Jidmitted 
in  evidence.  See  also  Boyden  v.  ]Moore, 
11  Pick.  802;  Walton  v.  Green,  1  C.  &  P. 
521  ;  Reed  v.  Dick,  8  Watts,  479  ;  O'Kel- 
ly  i\  O'Kelly,  8  Met.  480  ;  Styles  y.  West- 
ern Railroail  Corj).  Id.  44  [Battles  v.  Batch- 
elder,  89  Maine,  19]. 

2  Rawson  v.  Ilaigh,  2  Bing.  99,  104 ; 
Marsh  v.  Davis,  24  Verm.  808  ;  New  Mil- 
ford  V.  Sherman,  21  Conn.  101.  [The 
reasons  given  by  a  wife,  on  the  cJai/  after 
her  return  to  lier  father's  house  for  leaving 
hei-  husband,  are  not  a  part  of  the  res  ijcsta-, 
as  connected  witii  and  jJiU't  of  tlTe  act  of 
leaving  her  husband's  liouse,  and  so  are 
not  admissible  in  evidence  in  an  action 
brought  by  the  father  against  the  husband 
for  necessaries  supplied  the  wife ;  those 
made  at  the  time  of  the  return  being  ad- 
missible. Johnson  t'.  Sherwin,  3  Gray, 
374.] 


CHAP,  v.]  HEARSAY.  127 

connection  of  the  individuals  in  the  unlawful  enterprise  being  thus 
shown,  every  act  and  declaration  of  each  member  of  the  con- 
federacy, in  pursuance  of  the  original  concerted  plan,  and  with 
reference  to  tlie  common  object  is,  in  contem])lation  of  law,  the 
act  and  declaration  of  them  all ;  and  is  therefore  original  evidence 
against  each  of  them.     It  makes  no  difference  at  what  time  any. 
one  entered  into  the  conspiracy.     P^very  one  who  does  enter  into_^ 
a  common  purpose  or  design  is  generally  deemed,  in  law,  a  party  i 
to  every  act,  wdiich  had  before  been  done  by  the  others,  and  a  I 
party  to  every  act,  which  may  afterwards  be  done  by  any  of  the! 
others,  in  furtherance  of  such  common  design.^     Sometimes,  for| 
the  sake  of  convenience,  the  acts  or  declarations  of  one  are  admitted 
in  evidence,  before  sufficient  proof  is  given  of  the  conspiracy  ;  the 
prosecutor  undertaking  to  furnish  such   proof  in   a   subsequent 
stage  of  the  cause.     But  this  rests  in  the  discretion  of  the  judge, 
and  is  not  permitted,  except  under  particular  and  urgent  circum- 
stances ;  lest  the  jury  should  be  misled  to  infer  the  fact  itself  of 
the  conspiracy  from  the  declarations  of  strangers.     And  here,  also, 
care  must  be  taken  that  the  acts  and  declarations,  thus  admitted, 
be  those  only  which  were  made  and  done  during  the  pendency  of 
the  criminal  enterprise,  and  in  furtherance  of  its  objects.     If  they 
took  place  at  a  subsequent  period,  and  are,  therefore,  merely  narra- 
tive of  past  occurrences,  they  are,  as  we  have  just  seen,  to  be 
rejected.2     The  term  acts,  includes  written  correspondence,  and 
other  papers  relative  to  the  main  design ;  but  whether  it  includes 
unpublished  writings  upon  abstract  questions,  though  of  a   kin- 
dred nature,  has  been  doubted.^     Where  conversations  are  proved, 
the  effect  of  the  evidence  will  depend  on  other  circumstances,  such 
as  the~lact  and  degree  of  "the  prisoner's  attention  to   it,  and   his 
assent  or  disapproval.^ 

1  Rex  V.  "Watson,  32  Howell's  St.  Tr.  false    imprisonment,  tl.e  declaration  of  a 

7,  per  Bayley,  J.  ;  Uex  v.  Brandrelh,  Id.  co-detendant,    sliDwinj;    personal    malice,, 

857,  HoS^Kex  v.  Hardy,  24  Howell's  St.  though  made  in  the  absence  of  the  others, 

Tr  451,  452,  453,  475;  American  Fur  Co.  and  several  weeks  after  the  tact,  was  ad- 

I'.  The  United  States,  2  Peters,  358,  305 ;  mitted  by  Garrow,  B.,  without  such  re- 

Crowninshield's  case,  10  Pick.  497  ;  Rex  v.  strictioh.     Where   no  coinmon  object   or 

Hunt,  3  B.  &  Aid.  OGti ;  1  East,  P.  C.  i17,  motive  is  imputed,  as  in  actions  for  negli- 

§  38 ;  Nichols  r.  Dowding,  1  Stark.  K.  81.  gence,  tlie  declaration  or  admission  of  one 

*     -  Rex  V.  Hardy,  sn/ira.     The    declara-  defendant  is  not  admitted  a;j:ainst  any  but 

tions  of  one  co-trespasser,  wTTcre  several^  himself^     Daniels  v.  Potter,   1   M.  &  M. 
are  jointly  sued,  may  be   f>;iven  in   evifJSlJl. 

dencc  against  himself,  at  wliafever-liiiie  it         "  Foster's  Rep.  198  ;  Rex  v.  Watson,  2 

•was  uuide;  but,  if  it  was  not  part  of  the  Stark.  R.  110,  141-147.  ^ 

res  .f/fs^fp,  its  eftect  is  to  be  restricted  to  the  ■*  Rex  r.  HiU-dy,  24  Howell's   St.  Tr. 

party  making  it.    Yet,  in  Wriglit  v.  Court,  703,  per  Eyre,  C.  J. 
2  C.  &  P.  232,  wliicli  was  an  actiou  for 


128 


LAW   OF   EVIDENCE. 


[part  II. 


§  112.  Tliis  doctrine  extends  to  all  cases  o{ parinership.  AVhere- 
cvei"  any  nunilier  of  persons  associate  themselves  in  the  joint 
])i'osecution  of  a  common  enterprise  or  design,  conferring  on  the 
collective  hody  the  attribute  of  individuality  by  mutual  compact,  as 
in  commercial  partnerships,  and  similar  cases,  the  act  or  declaration 
of  each  member,  in  furtherance  of  the  common  olyect  of  the  associa- 
tion, is  tlie  act  of  all.  IJy  the  very  act  of  association,  each  one  is 
constituted  the  agent  of  all.^  While  the  being  thus  created  exists, 
it  speaks  and  acts  only  by  the  several  members  ;  and  of  course, 
when  that  existence  ceases  by  the  dissolution  of  the  firm,  the  act 
of  an  individual  member  ceases  to  have  that  etrcct ;  binding  himself 
alone,  except  so  far  as  by  the  articles  of  association  or  of  dissolu- 
tion it  may  have  been  otherwise  agreed.^  An  admission,  however, 
by  one  partner,  made  after  the  dissolution,  in  regard  to  business  of 
the  firm,  previously  transacted,  has  been  held  to  be  Ijiuding  on  the 
firni.^ 


1  Sandilands  v.  Marsh,  2  B.  &  Aid. 
673,  678,  67'J ;  Wood  v.  Braddick,  1  Taunt. 
104,  and  PetluTick  i\  Turner  et  al.  there 
cited;  IJex  /;.  Hard  wick,  11  F-ast,  578, 
58'J  ;  Van  lleinisdvk  v.  Kane,  1  Gall.  6:J0, 
635;  Nichols  v.  Dowdin-r,  1  Stark.  K.  81; 
Hodcniiiyl  v.  Vinirerhoed,  Cliitty  on  Bills, 
618,  note  ['!) ;  Coit  v.  Tracy,  8  Conn.  11. 
268.  [In  an  action  against  two  as  alleged 
c()i>artiK'rs,  evidence  of  statements  and 
declarations  wliicli  would  he  admissible 
only  upon  tlie  assumption  of  the  existence 
of  the  copartnersliip,  is  incompetent  to 
prove  such  copartnership.  Dutton  v. 
Woodman,  'J  Cash.  255  ;  Allcott  r.  Strong, 
•j  Cush.  323.  And  evidence  to  show  the 
contimumce  of  a  partnership  after  it  has 
been  dissolved,  witii  notice  to  the  ])arties, 
nnist  ije  as  satisfactory  as  that  recjuired  to 
show  its  establisbuieut.  Allcott  v.  Strong, 
t(^  sni>ra.\ 

'■'■  Bell  V.  Morrison,  1  Peters,  371 ;  Bur- 
ton c.  Issitt,  5  V>.  &  Aid.  267. 

*  This  doctrine  was  extended  by  Lord 
Brougham,  to  the  admission  of  payment  to 
the  partner  after  the  dissolution.  Britch- 
ard  V.  Draper,  1  Buss.  &  M.  lUl,  lU'J,  200. 
See  Wood  v.  Braddick,  1  Taunt.  104 ; 
■Wiiitcomli  ?•.  Wiiiting,  2  Doug.  652;  ap- 
])r()ved  in  Mclntire  /■.  Oliver,  2  llawkes, 
20'.l ;  Beit/  r.  Fuiier,  1  McCord,  541 ;  C^ady 
V.  Slieplierd,  11  Tick.  400;  Van  lieimsdyk 
V.  Kane,  1  Gall.  635,  636.  See  also  Parker 
V.  Merrill,  6  (ireenl.  41;  Martin  v.  Boot, 
17  JNIass.  223,  227;  Vinal  );.  liurrill,  16 
Pick.  401 ;  Lefavour  v.  Vandcs,  2  Blackf. 
240;  Bridge  c  (iniy,  14  Pick.  55;  (Jay  v. 
Bowen,  8  Met.  100;  Mann  v.  Locke,  11 


N.  Ilamp.  R.  246,  to  the  same  point.  [See 
also  Looniis  v.  Looniis,  26  Vt.  108 ;  Pierce 
V.  Wood,  3  Foster,  51U ;  Dnnuright  ;;. 
Philpot,  16  Geo.  424.  But  wiiere,  after 
the  dissolution  of  a  copartnership,  one 
])artner  assigned  liis  interest  in  a  partner- 
ship claim  against  the  defendant  to  the 
other  ]iartner,  in  a  suit  on  such  claim 
brought  in  the  name  of  both  ])artners  for 
the  benefit  of  the  assignee,  the  declarations 
of  tlie  assignor  made  after  the  assignment 
are  not  admissible  in  favor  of  the  tlefeiid- 
ant.  (Jillighan  v.  Tebbetts,  33  IMaine, 
360.]  In  New  York,  a  different  doctrine 
is  established.  Walden  v.  Sherburne,  15 
Johns.  400;  Hopkins  v.  Banks,  7  Coweu, 
650;  Clark  v.  Glcason,  0  Cowen,  57;  Ba- 
ker V.  Stackpole,  Id.  420.  So  in  Louisituia. 
Lambeth  ;;.  Vawter,  6  Bob.  l^a.  K.  127. 
See,  also,  in  support  of  the  text,  Lacy  v. 
McNeil,  4  Dowl.  &  By.  7.  Whether  the 
acknowledgment  of  a  debt  by  a  i)artner, 
after  dissolution  of  the  iJartiiershi]),  will 
be  sullicieut  to  take  the  case  out  of  the 
statute  of  limitations,  and  revive  the  rem- 
edy against  the  others,  has  been  very 
nnich  controverted  in  this  country  ;  and 
the  authorities  to  the  point  aie  conflicting. 
In  ICngland,  it  is  now  settled  by  Lord  Ten- 
terden's  Act  (0  Geo.  4,  c.  14),  that  such 
acknowledgment,  or  new  j)r()mise,  inde- 
))eiKlent  of  the  fact  of  part  payment,  shall 
not  have  such  effect,  cxcejit  against  the 
jjarty  making  it.  Tliis  provision  has  been 
adopted  in  the  laws  of  some  of  the  United 
States.  See  Massarliusells,  Kev.  Sts.  ch. 
I2i),  §  14-17  ;  IWmont,  Bev.  Sts.  ch.  58, 
§§  23,  27.     And  it  has  since  been  holden 


CHAP. 


^'•] 


HEARSAY. 


129  : 


§  113.  A  kindred  principle  governs  in  regard  to  tlic  declarations 
of  agents.     The  principal  cunslitutcs  the  agent  his  representative,  in 


•J 


4 


in  England,  wliere  a  debt  was  originally 
contracted  witli  a  partnership,  au(l  more 
than  six  years  afterwards,  hut  within  six 
years  before  action  hrought,  tiie  partner- 
siii])  having  iieen  dissolved,  one  partner 
inatle  a  partial  payment  in  respect  of  tlie 
debt,  —  that  this  barred  the  operation  of 
the  statute  of  limitations  ;  althoiigli  the 
jury  found  that  lie  made  the  i)aynient 
by  concert  with  the  ]>laintifls,  in  the  jaws 
of  bankruptcy,  and  in  fraud  of  his  late 
jiartners.  (ioddard  i'.  Ingram,  3  Ad.  & 
lil.  S3y,  N.  s.  The  American  cases  seem 
to  have  turned  mainly  on  the  question, 
^.  "^     whether  the  admission  of  the  existing  in- 

4  ;^  dehtment  amounted  to  the  making  of  a 
vj  new  contract,  or  not.  Tlie  courts  which 
>^  ?L.have  viewed  it  as  virtually  a  new  contract, 

1  i    have  held,  that  the  acknowledgment  of 

J-^    the  debt  by  one  partner,  after  the  dissolu- 

X  "t    tion  of  jwrtnership,   was   not  admissible 

against   his  cojiartner.     This  side  of  the 

(juestion  was  argued  l\v  Mr.  Justice  Story, 

with  his  accustomed  ability,  in  delivering 

"  the  judgn)ent  of  the  court  in  Bell  v.  Mor- 

"jO    rison,  1  I'eters,  367,  et  sec/. ;  where,  after 

^^    stating  the  point,  be  proceeded  as  follows  : 

"  In  the  case  of  Bland  v.  Ilaselrig,  'Z  Vent. 

151,  where  the  action  was  against  four, 

upon  a  joint  promise,  and  the  i)lea  of  the 

Y  JY   statute  of  limitations  was  put  in,  and  the 

'^  ^    jury  found  that  one  of  the  defendants  did 

5  V^^promise  within  six  years,  and  that  the 
(*  i  others  did  not ;  three  judges,  against  Ven- 
J;.^  tris,  J.,  held  that  the  plainlitf  could  not 
J  <     liave  judgment  against  the  ilefendaiit,  who 


5 


h 


K 


"^had  made  the  promise.  This  case  has 
been  explained  upon  the  ground, that  the 
A'erdict  did  not  conform  to  the  pleadings, 
and  establish  a  joint  promise.  It  is  very 
doubtful,  upon  a  critical  examination  of 
the  report,  whether  the  opinion  of  the 
court,  or  of  any  of  the  judges,  proceeded 
solely  ujion  such  grounii.  In  Whitcomb 
V.  Whiting,  2  Doug.  fio2,  decided  in  1781, 
in  an  action  on  a  joint  and  several  note 
brought  against  one  of  the  makers,  it  was 
lield,  that  proof  of  payment,  by  one  of  the 
others,  of  interest  on  the  note  and  of  part 
of  the  principal,  within  six  years,  took  the 
case  out  of  the  statute,  as  against  tlie  de- 
fendant who  was  sued.  Lord  Mansfield 
said,  'payment  by  one  is  jiayment  for  all, 
the  one  acting  virtually  for  all  the  rest; 
and  in  the  same  manner,  an  admission  by 
one  is  an  admission  by  all,  and  the  law 
raises  the  promise  to  pay,  when  the  debt  is 
admitted  to  be  due.'  This  is  the  whole  rea- 
soning reported  in  theI'iVse,aiid  is  certainly 
not"  very  satisfactory.     It  assumes  that 


one  party,  who  lias  authority  to  discharge, 
has  necessaril}',  also,  authority  to  charge 
the  others  ;  that  a  virtual  agency  exists  in 
t'ach  joint  debtor  to  pay  for  the  whole  ; 
and  that  a  virtual  agency  exists  by  analogy 
to  charge  the  whole.  Now,  this  very  posi- 
tion constitutes  the  matter  in  controversy. 
It  is  true,  that  a  payment  by  one  does  en- 
ure for  the  benelit  of  the  whole  :  but  this 
arises  not  so  much  trom  any  virtual  agency 
for  the  whole,  as  by  ojieration  of  law  ;  for 
the  payment  extinguishes  the  debt ;  if 
such  j)ayment  were  made  after  a  positive 
refusal  or  prohibition  of  the  other  joint 
debtors,  it  would  still  operate  as  an  extin- 
guishment of  the  debt,  and  the  creditor 
could  no  longer  sue  them.  In  truth,  he 
who  pays  a  joint  debt,  pays  to  discharge 
himself;  and  so  far  from  binding  the 
others  conclusively  by  his  act,  as  virtually  ' 
theirs  also,  he  cannot  recover  over  against 
them,  in  contrilnition,  without  such  pay- 
nu'Ut  has  been  rightfully  made,  and  ought 
to  charge  them.  When  the  statute  has  ""'  ^ 
run  against  a  joint  debt,  the  reasonable  '    -^ 

presumption  is,  that  it  is  no  longer  a  sub-  s^     _  "x, 
sisting  debt ;  and,  therefore,  there  is  no   '^ 
ground  on  which  to  raise  a  virtual  agency     * 
to  pay  that  which  is  not  adndtted  to  exist.  \*..    \'^- 
But  if  this  were  not  so,  still  there  is  a  great  '^ 

ditft'rence  between  creating  a  virtual  agen-  "  ^-, 
cy,  which  is  for  the  benefit  of  all,  and  one 
which  is  onerous  and  prejudicial  to  all. 
The  one  is  not  a  natural  or  necessary  con- 
secpience  from  the  other.  A  person  may 
well  authorize  the  jiayment  of  a  debt  for 
which  he  is  now  liable,  and  yet  refuse  to 
authorize  a  charg^  where  there  at  present 
exists  no  legal  liability  to  pay.  Yet,  if  the 
princij)le  of  Lord  iNIansfield  he  correct,  the 
acknowledgment  of  one  joint  debtor  ^\'lll 
bind  all  the  rest,  even  though  they  shoidd 
have  utterly  denied  the  debt  at  the  time  ^^^ 
when  such  acknowledgment  was  made. 
The  doctrine  of  ^^'hitcomb  r.  Whiting  has  "-  '  ■ 
been  followed  in  Lngland  in  subsequent 
cases,  and  was  resorted  to  in  a  strong  man- 
ner, in  Jackson  r.  Fairbank,  '2  11.  Bl.  310,  \  .^ 
where  the  admission  of  a  creilitor  to  prove  ,„  "^^ 
a  debt,  on  a  joint  ami  several  note  imder  a  -^^ 
bankru])tcy,  and  to  receive  a  dividend, 
was  held  sutHcient  to  charge  a  solvent 
joint  debtor,  in  a  several  action  against 
him,  in  which  he  i)leaded  the  statnte,  as 
an  acknowledgment  of  a  sidisisting  debt. 
It  has  not,  however,  been  received  without 
hesitation.  In  Clark  v.  Biadshaw,  3  Ksp. 
lob.  Lord  Kenyon,  at  AV.s/y^r/H.s,  expressed  ' 
some  doubts  njion  it ;  and  the  catise  went 
otl'  on  another  ground.     And  in  Bradram 


■  <i 


r 


100 


LAW    OF  EVIDENCE. 


[part  II. 


the  transaction  of  certain  business  ;  whatever,  therefore,  the  aucnt 
docs,  in  the  lawful  prosecution  of  that  business,  is  the  act  of  the 


V.  "Wharton,  1  Barn.  &  Aid.  4G3,  tlie  case 
was  very  much  sliaken,  if  not  overturned. 
Lord  Kllenl)orouyli,  upon  tliat  occasion 
useil  lanjj;uai;e,  from  wliicli  his  dissatisfac- 
tion witii  the  wlioie  doctrine  may  he  clearly 
interred.  '  This  doctrine,'  said  lie,  'of  re- 
huttinii  the  statute  of  limitations,  hy  an 
ackuowledtjmeiit  other  tlian  that  of  the 
part}-  himself,  hcfran  with  the  case  of 
Whitcomb  r.  Whiting.  By  that  decision, 
where,  however,  there  was  an  e.\i)ress  ac- 
knowledgment, hy  an  actual  i)aynient  of  a 
part  of  the  debt  by  one  of  the  parties,  I  am 
bound.  But  that  case  was  full  of  hard- 
ships ;  for  this  inconvenience  maj^  fijllow 
from  it.  Suppose  a  person  liable  jointly 
with  thirty  or  forty  others,  to  a  del)t ;  he 
may  have  actually  paid  it,  he  may  have 
had  in  his  possession  the  document  hy 
which  that  j)ayment  was  proved,  hut  may 
have  lost  his  receipt.  Tlien,  though  this 
was  one  of  the  very  cases  which  this  stat- 
ute was  passed  to  protect,  he  may  still  be 
bound,  and  his  liability  be  renewed,  by  a 
random  acknowledgment  made  hy  some 
(jne  of  the  thirty  or  I'orty  others,  who  may 
he  careless  of  what  mischief  he  is  doing, 
and  who  may  even  not  know  of  the  pay- 
ment which  lias  been  made.  Beyond  that 
case,  therefore,  1  atn  not  prepared  to  go, 
so  as  to  dej)rive  a  party  of  the  advantage 
given  him  by  the  statute,  by  means  of  an 
implied  acknowledgment.'  In  the  Ameri- 
can courts,  so  far  as  our  researches  have 
extended,  few  cases  have  heen  litigated 
upon  this  question.  In  Smith  v.  Ludlow, 
tj  Joims.  2<')8,  the  suit  was  brought  against 
both  jiartners,  and  or#  of  them  pleaded 
the  statute.  Upon  the  dissolution  of  the 
jiartnership,  public  notice  was  given  that 
the  other  partner  was  authorized  to  adjust 
all  accomits  ;  and  an  account  signeil  by 
him,  after  such  advertisement,  and  within 
>ix  vears,  was  introduced.  It  was  also 
proved,  that  the  jilaintitt"  called  on  the 
jiartner,  who  pleaded  the  statute,  before 
the  connnencement  of  the  suit,  and  re- 
quested a  settlement,  and  that  he  then 
admitted  an  account,  dated  in  1707,  to 
ha\  e  been  made  out  hy  him  ;  that  he 
thought  tlve  account  had  heen  settled  hy 
the  other  detc'iidant,  in  whose  hands  the 
books  of  partnership  were;  and  that  he 
would  see  the  other  defendant  on  the  sub- 
ject, and  communicate  the  result  to  the 
plaintiff.  Tliejjiiurt  held  that  this  was 
sufficient  PVlilkO  the  case  out  of  the  stat- 
ute ;  and  said,  that  without  any  express 
a u thority,  the  cohfes.^lon  of  one  partner, 
tiiler  il{e  dissolution,  will  take  a  debt  out 


K 


of  the  statute.    Tlie  acknowledgment  will 
not,  ot  itselt',  be  evidence  of  an  original  j 
debt;  for  that  would  enable  one  party  toj 
bind   the   other   in   new   contracts.     But;^  r\ 
the  original  debt  lieing  j)roved  or  admitted,  I      I 
the  contession  of  one  will  bind  the  other,''      \ 
so  as" to  prevent  him  from  availing  himself  |        » 
of  the  statute.     This  is  evident,  from  the!         • 
cases  of  Whitcomb  v.  Whiting,  and  Jackson 
V.  I""airbank ;    and   it  results   necessarily 
from  the  power  given  to  adjust  accounts 
The  court  also  thought  the  acknowledj 
ment  of  the  ])artner,  setting  up  the  sta 
ute,  was  sutficient  of  itself  to  sustain  th 
action.     This  case  has  the  peculiarity  oi 
an  acknowledgment  made  by  both  part^ 
ners,  and  a  formal  acknowledgment  by 
the  partner  who  was  authorized  to  adjust 
the  accounts  after  the  dissolution  of  the 
partnership.     There  was  not,  therefore,  a. 
virtual,   but    an    express    and   notorious 
agency,  devolved  on  him,  to  settle  the  ac- 
count.     The  correctness  of  the  decision 
cannot,  upon  the  general  view  taken  by 
the  cotirt,  be  questioned.     In  Roosevelt  v. 
Marks,  0  Johns.  Ch.  266,  2'Jl,  iMr.  Chan- 
cellor  Kent    admitted    the   authority   of 
Whitcomb   v.   Whiting,  but  denied   that 
of  Jacksi^n  v.  Fairbank,  for  reasons  which 
apjiear  to  us  solid  and  satisfactory.     Upon 
some  other  ciises  in  New  York,  we  shall 
have  occasion  hereafter  to  comment.     Iij^. 
Hunt  r.  Bridgham,  2  I'ick.  5^<1,  the  Su- 
lireme  Court  of  Massachusetts,  upon  the 
authority  of  the  cases  in  Douglas,  11.  Black- 
stone,  and  Johnson,  held,  that  a  partial 
payment  by  tlie  jirinciiial  debtor  on  a  note, 
took  the  case  out  of  the  statute  of  limita- 
tions, as  against  a  surety.     The  court  do  /--v       , 
not  proceed  to  any  reasoning  to  establish  ^0  J  ' 
the  principle,  considering  it  as  the  result  :r     **  J 
of  tlie  authorities.     Shelton  >•.  Cocke,  3       ^  j 
Munfbrd,  V.)l,  is  to  the  same  eflect;  and     ^C    ^ 
contains  a  mere  annunciation  of  the  rule,     ^^  • 
without  anj-  discussion  of  its   principle.  Jx  i  ' 
Simpson   v.  Morrison,  2  Bay,  583,  pro-  ^cJ  ^ 
ceeded  upon  a  broader  ground,  and  as- 
sumes the  doctrine  of  the  case  in  1  Taunt. 
V\i,    hereinafter    noticed,    to    be   correct. 
Whatever  may  be  the  just  influence  of 
such  recognitions  of  the  principles  of  the 
English  cases,  in  other  states,  as  the  doc- 
trine is  not  so  settled  in  Kentucky,  we 
must  resort  to  such  recognition  only  as 
furnishing  illustrations  to  assist  om-  rea- 
soning, and  decide  the  case  now  as  if  it     "   "^ 
had  never  been  decided  before.     By  the        v 
general  law  of  partnership,  the  act  of  each    ^  ^ 
partner,   during   the   continuance  of  the  >  J*^ 
partnership,  and  within  the  scope  of  its^^  ; 


-6. 

.1 


i 


v> 


CHAP,  v.] 


HEARSAY. 


principal,  wliom  he  represents. 

will  bind  the  principal,  there  his  representations,  declarations,  and 


And  J^  wherejlie  acts  of  the  agent 


.^K 


objects,  binds  all  tlie  others.  It  is  con- 
sidered the  act  of  eacii,  and  of  all,  result- 
ing from  a  general  and  mutual  delegation 
of  authority.  Each  partner  may,  there- 
tore,  bind  the  partnersliip  by  his  contracts 
in  the  partnership  business  ;  l)ut  he  cannot 
bind  it  by  any  contracts  beyond  those  lim- 
its. A  dissolution,  however,  puts  an  end 
to  the  authority.  IJy  the  force  of  its  terms, 
it  op(?rates  as  a  revocation  of  all  power  to 
create  new  contracts  ;  and  the  right  of 
partners  as  such,  can  extend  no  further 
than  to  settle  the  partnershi])  concerns 
already  existing,  and  to  distribute  the  re- 
maining funds.  Even  this  right  may  be 
qualified,  and  restrained,  by  tiie  express 
delegation  of  the  whole  authority  to  one 
lof  tlie  partners.  The  question  is  not,  how- 
ever, as  to  the  authority  of  a  partner  after 
jthe  dissolution  to  adjust  an  admitted  and 
subsisting  debt;  we  mean,  admitted  by 
the  whole  partnership  or  unbarred  by  the 
statute;  but  whether  he  can,  by  his  sole 
act,  after  the  action  is  barred  by  lapse  of 
time,  revive  it  against  all  the  partners, 
without  any  new  authority  communicated 
to  him  for  this  purjjose.  We  think  the 
proper  resolution  of  this  point  depends 
upon  another,  that  is,  whether  the  ac- 
knowledgment or  promise  is  to  be  deemed 
a  mere  continuation  of  the  original  prom- 
ise, or  a  new  contract,  springing  out  of, 
and  supported  by,  the  original  considera- 
tion. We  think  it  is  the  latter,  both  upon 
principle  and  authority  ;  and  if  so,  as  after 
the  dissolution  no  one  partner  can  create 
a  new  contract,  binding  upon  the  others, 
liis  acknowledgment  is  inoperative  <aml 
void,  as  to  them.  There  is  some  confu- 
sion in  the  language  of  the  books,  result- 
ing from  a  want  of  strict  attention  to  the 
distinction  here  indicated.  It  is  often 
said,  that  an  acknowledgment  revives  the 
promise,  when  it  is  meant,  that  it  revives 
the  debt  or  cause  of  action.  The  revival 
of  a  debt  supposes  that  it  has  once  been 
extinct  and  gone ;  that  there  has  been  a 
jieriod  in  which  it  had  lost  its  legal  use 
and  validity.  The  act  which  revives  it 
is  what  essentially  constitutes  its  new  be- 
ing, and  is  inseparable  from  it.  It  stands 
not  by  its  original  force,  but  by  the  new 
promise,  which  imi)arts  vitality  to  it. 
Proof  of  the  latter  is  indisjiensable,  to 
raise  the  assumpsit,  ou  which  an  action 
iCan  be  maintained.  It  was  this  view  of 
the  matter  which  first  created  a  doubt, 
whether  it  was  not  necessary  that  a  new 
eonsiileration  should  be  i)ioved  to  sujiport 
the  promise,  since  the  old  consideration 


was  gone.     That  doubt  has  been  over- 
come ;  and  it  is  now  held,  that  the  origi- 
nal consideration  is  sufficient,  if  recognized 
to  uphold  the  new  promise,  although  the 
statute  cuts  it  off,  as  a  support  for  the  old. 
What,  indeed,  would  seem  to^be  decisive 
oh  this  subject  is,  that  the  new  promise,  ^., 
if  qualified   or  conilitional,   restrains   the 
rights  of  the  party  to  its  own  terms;  and 
if  he  cannot  recover  bj'  those  terms,  he.  ' 
cannot  recover  at  all.     If  a  person  promise  ^ 
to  pay,  upon  condition  that  the  other  do  -. 
an  act,  performance  must  be  shown,  hefore  -^ 
any  title  accrues.     If  the  declaration  lays  , 
a  promise  by  or  to  an  mtestate,  proof  of  '"^' 
the  acknowledgment  of  the  debt  by  or  to  • "' 
his  personal  representative  will  not  main-  w 
tain  the  writ.     Why  not,  since  it  estab-  ^'  -'- 
lislies  the  continued  existence  of  the  debt^i^    "  " 
The  plain  reason  is,  that  the  promise  is  a  ,' 
new  one,  by  or  to  the  administrator  him-    . 
self,  upon  the  original  consideration;  and" 
not  a  revival  of  the  original  promise.     So,  N- 
if  a  man  proiuises  to  pay  a  preexisting 'n„ 
debt,  barred  by  the  statute,  when  he  is 
able,  or  at  a  future  day,  his  ability  must  V  -v 
be  shown,  or  the  time  must  be  passed  be-    ^  \^ 
fore  the  action  can  be  maintained.    Why "?  vfw 
Because  it  rests  on  the  new  promise,  and 
its  terms  must  be  complied  with.     We  do  '^ 
not  here  speak  of  the  form  of  alleging  the  '  - 
promise  in  the  declaration ;  upon  which,    " 
perhaps,  there  has  been   a  diversity  of 
opinion  and  judgment ;  but  of  the  tact  it- 
self, whether  the  promise  ought  to  he  laid 
in  one  way  or  another,  as  an  absolute,  or 
as  a  conditional  ijfomise ;  which  maj'  de-  _" 
pend  on  the  rules  of  pleading.     This  very^^' 
point  came  before  the  twelve  judges,  ia  ■__ 
the  case  of  Hey  ling  v.   Hastings,  1   Ld. 
Kaym.  381),  421,  in  the  time  of  Lord  Holt.i 
There,  one  of  the  points  was,  '  whelheri  .. 
the  acknowledgment  of  a  debt  within  six! 
years  wotdd  amount  to  a  new  promise,  to] 
bring  it  out  of  the  statute  ;  and  they 
all  of  oj)inion  that  it  wt)uld  not,  but  ths 
was  evidence  of  a  promise.'     Here,  then, 
the  judges  manifestly  contemiilated  the 
acknowledgment,  not  as  a  continuation  of 
the  old  promise,  but  as  evidence  of  a  new 
promise ;  and  that  it  is  the  new  promise 
which  takes  the  case  out  of  the  statute. 
IS'ow,  what  is  a  new  promise  but  a  new 
contract ;  a  contract  to  pay,  upon  a  ]ire- 
cxisting  consideration,  which  does  not  of 
itself  bind  the  party  to  pay  independently 
of  the  contract  f     ISo,  in  Doydell  r.  Drum- 
niond,  '2  Cami)b.  1.57,  Lord   Lllenborough, 
with    his   characteristic    precisiou,   said : 
'  If  a  man  acknowledges  tlie  existence  of 


ise,  to  3  -4 
were  >r 
hat  it 


132 


LAW    or    EVIDENCE. 


[part  II. 


admission?,  respecting  the  snl)jeet-matter,  "will  also  bind   liiui^f 
made  at  the  same  time,  and  constitntiug  part  of  the   res  r/estcc.^^  ^ 


a  debt,  barred  by  tlic  statute,  tlie  law  has 
been  supposeii  to  raise  a  new  i)r()iiiise  to 
pay  it,  ami  tlius  the  remedy  is  revived.' 
And  it  may  hv  affirmed,  that  tiie  general 
current  of  the  Knglisli,  as  well  as  the 
American  authorities,  oonlbrms  to  this 
view  of  tiie  oi)eration  of  an  acknowledg- 
ment. In  Jones  v.  Moore,  5  Biimey,  573, 
Mr.  Chief  Justice  Tilghman  went  into  an 
elaborate  examination  of  this  very  ])oint; 
and  came  to  the  conclusion,  from  a  review 
of  all  the  cases,  that  an  acknowledgment 
of  tlie  debt  can  only  be  considered  as  evi- 
dence of  a  now  proinise  ;  and  he  added, 
'  1  cannot  comprehend  the  meaning  of  re- 
viving the  old  debt  in  any  other  manner, 
than  by  a  new  ])romise.'  There  is  a  class 
of  cases,  not  yet  adverted  to,  which  mate- 
rially illustrates  the  right  and  powers  of 
I)artners,  after  the  dissolution  of  the  part- 
nership, and  bears  directly  on  the  point 
under  consideration.  In  llackley  /•.  Pat- 
rick, 3  Johns.  031),  it  was  said  by  tlie  court, 
that  '  after  a  dissolution  of  the  partnership, 
the  power  of  one  party  to  bind  the  others 
wholly  ceases.  There  is  no  reason  why 
this  acknowledgment  of  an  account  shoidd 
bind  his  copartners,  any  more  than  his 
giving  a  i)romissory  note,  in  the  natue  of 
the  tirni,  or  any  other  act.'  And  it  was 
therefore  heUl,  that  the  plaintiff  ni'iisTpro- 
duce  further  evidence  of  tlie  existence  of 
an  antecedent  debt,  before  he  could,  re- 
cover ;  even  though  the  ackjiowledi^ilietit 
was  T)y  a  partner  authorized  to  settle  all 
tlie  accounts  of  the  tirni.  This  doctrine 
was  again  recognized  J)y  the  same  court, 
in  VValden  v.  Slierhurne,  15  Johns.  4()'.l, 
424,  although  it  was  admitted,  that  in 
Wood  V.  liraddick,  1  Taunt.  104,  a  (lifer- 
ent decision  had  been  had  in  England.  If 
this  doctrine  be  well  founded,  as  we  think 
it  is,  it  furnishes  a  strong  ground  to  (jues- 
tion  the  efficacy  of  an  acknowledgment  to 
bind  the  partnership  for  any  purjxjse.  If 
it  does  not  estaljlish  the  existence  of  a 
debt  against  the  ]>artnership,  why  should 
it  be  evi<lence  against  it  at  all  (  If  evi- 
dence, iiliuiii/i'.,  of  tacts  within  the  reach  of 
the  statute,  as  the  existence  of  a  debt, 
be  necessary  before  the  acknowledgment 
binds,  is  not  this  letting  in  all  the  mis- 
chiefs against  which  the  statute  intendeil 
to  guard  the  jiarties  ;  viz.,  the  introduction 
of  stale  and  dormant  demands,  of  long 
standing,  and  of  uncertain  proof!  If  the 
acknowledgment,  /»-;•  sf,  tloes  not  binil  the 
other  partners,  where  is  the  propriety  of 


admitting  proof  of  an  antecedent  debt,  ex-i  ^ 
tinguished  by  the  statute  as  to  them,  to  >.; . 
be    revived    without    their   consent?      It '• 
seems  dithctdt  to  tind  a  satisfactory  reason 
why  an  acknowledgment  should  raise  a 
new  promise,  when  the  consideration,  up-     ' 
on  which  alone  it  rests,  as  a  legal  ohliga-    ; 
tion,  is  not  coupled  with  it  in  such  a  shape  v 
as  to  bind  the  ])arties  ;  that  the  i)arties  are  (^ 
not  bomid  by  the  admission  of  the  ddit.  as 
a  debt,  hut  are  l)oimd  hy  the  acknowledg-    -' 
ment  of  the  debt,  as  a  promi?e,  ujxjn  ex-    - 
trinsic  proof.     The  doctrine  in  1  'I'aunt.    .. 
104,  stands  upon  a  clear,  if  it  be  a  legal, ' 
ground  ;  that,  as  to  the  things  i)ast,  the     ■ 
partnership  continues,  and  always  must  ". 
continue,  notwithstanding  the  ilissolution. 
That,  however,  is  a  matter  which  we  are 
not  prepared  to  admit,  and  constitutes  the 
very  ground  now  in  controversy.     The   j 
light  in  which  we  are  disposed  to  consideivy 
this  question  is,  that  after  a  dissolution  of 
a  partnership,  no  ])artner  can  create  a  cause 
of  action  against  the  other  partners,  except 
by  a  new  authority  comnuuiicated  to  him\- 
for  that  {)urpose.     It  is  wholly  immaterial, 
what  is  the  consideration  which  is  to  rais(^ 
such  cause  of  action  ;  whether  it  be  a  supJ." 
posed  preexisting  debt  of  the  jiartnership, 
or    any    auxiliary    consideration,    which  ^, 
might  prove  henelicial  to  them.     Unless       - 
adopted  by  them,  they  are  not  bound  by 
it.     When  the  statute  of  limitations  has 
once  run  against  a  debt,  the  cause  of  action       "" 
against  the  i)artnersliip  is  gone.     The  ac-   '^"^ 
knowledgment,  if  it  is  to  operate  at  all,  is^"''' 
to  create  a  new  cause  of  action  ;  to  revive  "  ^ 
a  debt  which  is  extinct;  and  thus  to  give  'S.- 
an  action,  which  has  its  lilie  from  the  new^  • 
promise  iinjjlied  by  law  from  such  an  ac- 
knowledgment, and  operating  and  limited  -,    v 
by  its  jiurport.     It  is,  then,  in  its  essence,  * 
the  creation  of  a  new  right,  and  not  the  -  .. 
enforcement  of  an   old   one.     We   think,-    :' 
that  the  power  to  create  such  a  right  does  ~ 
not  exist  after  a  dissolution  of  the  partner-  „  ^ 
ship  in  any  i)artner."  _v  ^ 

It  is  to  be  observed,  tliat  in  tliis  opinion 
the  court  were  not  unanimous  :  and  that 
the  Icjirned  judge  declares  that  the  major- 
ity were  "  principally,  though  not  exclu- 
sively, influenced  by  the  course  of  decisions 
in  Kentucky,"  where  the  action  arose.  A 
similar  view  of  the  question  has  been 
taken  b}-  the  courts  of  J-'eiinsijIrtiiiifi,  both 
before  and  since  the"  decision  of  Bell  v. 
Morri.-ion  ;  Levy  v.  Cadet,  17  Serg.  & 
Kaw.  Ili7  ;  8earight  v.  Craighead,  1  Teim. 


1  Story  on  Agency,  §  134-137. 


CHAP,  v.] 


HEARSAY. 


-1  oo 
loo 


"  *They  are  of  the  nature  of  original  evidence,  and  not  of  hearsay ; 
^  the  representation  or  statement  of  the  agent,  in  such  cases,  being 
'f  the  ultimate  fact  to  be  proved,  and  not  an  admission  of  some 
J  other  fact.i  But,  it  must  be  remembered,  that  the  admission 
X     of  the  agent  cannot  always  be  assimilated  to  the  admission  of 

^thc  principal.  The  party's  own  admission,  whenever  made,  maj 
t  J^  givGi^  in  evidence  against  him ;  but  the  admission  or  declaration 
J     of  his  agent  binds  him  only  when  it  is  made  during  the  continu- 

Lance  of  the  agency  in  regard  to  a  transaction  then  depending  et 
dumfervet  opus.    It  is  TDecaiise  Tt  is' a  verBal  acf,  ah3"'part  of  the 
^     res  ffestce,  tiiat  it  is  admissible  at  all ;  and  therefore,  it  is  not  ncces- 


135;  and  it  has  been  followed  by  the 
Courts  of  Indiana.  Yandes  v.  Letiivour, 
2  Blackf  371.  Other  judges  have  viewed 
such  admissions  not  as  going  to  create  a 
new  contract,  but  as  mere  acknowledg- 
ments of  the  continued  existence  of  a  debt 
previously  created,  tiiereby  repelling  the 
presumption  of  payment,  resulting  from 
lapse  of  time,  and  thus  taking  the  case  out 
of  the  operation  of  the  statute  of  limita- 
tions. To.  this  eflect  are  WJiite  v.  Hale,  3 
rick.  291 ;  Martin  v.  Root,  17  Mass.  222, 
227;  Cady  v.  Shepherd,  11  Pick.  400; 
Vmal  V.  Bm-rill,  16  Pick.  401  ;  Bridge 
V.  Gray,  14  Pick.  61  ;  Patterson  v. 
Choate,  7  Wend.  441 ;  Hopkins  v.  Banks, 
7  Cowen,  650;  Austin  v.  Bostwick,  9 
Conn.  496 ;  Greenleaf  v.  Quincv,  3  Fairf. 
11  ;  Mclntire  v.  Oliver,  2  Hawks,  209; 
Ward  V.  HoweU,  5  Har.  &  Johns.  60; 
Fisher  v.  Tucker,  1  McCord,  Ch.  K.  175 ; 
Wheelock  v.  Doolittle,  3  WaslO).  Vt.  R. 
440.  In  some  of  the  cases  a  distinction  is 
strongly  taken  between  admissions  wliicli 
go  to  estabUsh  the  original  existence  of 
the  debt,  and  those  which  only  show  that 
it  has  never  been  jiaid,  but  still  remains  in 
its  original  force ;  and  it  is  held,  that  be- 
fore the  admission  of  a  partner,  made 
after  the  dissolution,  can  be  received,  the 
debt  must  first  be  proved,  aliunde.  See 
Owings  V.  Low,  5  Gill.  &  Johns.  134, 144; 
Smith  V.  Ludlow,  6  Johns.  267  ;  Patterson 
r.  Choate,  7  Wend.  441,  445 ;  Ward  v. 
Howell,  Fisher  v.  Tucker,  Hopkins  v. 
Banks,  Vinal  v.  Burrill,  ubi  supra ;  Shel- 
ton  V.  Cocke,  3  Munf  197.  In  Austin  v. 
Bostwick,  the  partner  making  the  admis- 
sion had  become  insolvent;  but  this  was 
held  to  make  no  difference,  as  to  the  ad- 
missibility of  his  declaration.  A  distinc- 
tion has  ahvaj's  been  taken  between  ad- 
missions by  a  partner  after  the  dissolution, 
but  before  the  statute  of  limitations  has 
attached  to  the  debt,  and  those  made 
afterwards ;  the  former  being  held  rcceiv- 


able,  and  the  latter  not.  Fisher  v.  Tucker, 
OlcCord,  Ch.  R.  175.  And  see  Scales  c. 
Jacob,  3  Bing.  638 ;  Gardner  v.  McMahon, 
3  Ad.  &  El.  566,  n.  s.  See  further  on  the 
general  doctrine,  post,  §  174,  note.  In  all 
cjises,  where  the  admission,  whether  of  a 
partner  or  other  joint  contractor,  is  re- 
ceived against  his  companions,  it  must 
have  been  made  in  good  faith.  Coit  i'. 
Tracy,  8  Conn.  268.  See  also  Chardon  v. 
Oliphant,  2  Const.  R.  685;  cited  in  Coll- 
yer  on  Partn.  236,  n.  (2d  Am.  ed.).  It 
may  not  be  useless  to  observe,  that  Bell  v. 
Morrison  was  cited  and  distinguished, 
partly  as  founded  on  the  local  law  of  Ken- 
tucky, in  Parker  r.  Merrill,  6  Greenl.  47, 
48 ;  and  in  Greenleaf  v.  Quincy,  3  Fau-f. 
11 ;  and  that  it  was  not  cited  in  the 
cases  of  Patterson  v.  Choate,  Austin  v. 
Bostwick,  Cady  v.  Shepherd,  Vinal  v. 
Burrill,  and  Y'andes  r.  Lefavour,  though 
these  were  decided  subsequent  to  its  pub- 
Ucation.  [*  Partners,  after  the  dissolution 
of  the  partnersliip,  and  aside  from  any 
agency  in  setthng  the  business,  are  per- 
haps tairly  to  be  regarded  in  the  light  of 
ordinary  joint  contractors  ;  and  if  both  are 
parties  to  the  action,  the  declarations  of 
both,  in  regard  to  the  common  indebted- 
ness, are  admissible.  But  where  only  one, 
or  any  number  less  than  the  whole,  are 
parties,  the  mere  declarations  and  admis- 
sions of  a  co-conti-actor,  not  a  party,  and 
unaccompanied  by  any  act  in  furtherance 
of  the  connnon  duty  or  obligation,  are  not 
ordinarily  held  admissible  evidence  against 
the  others,  but  the  cases  are  conflicting 
upon  this  point.  Where  payments  were 
made  by  a  co-contractor,  it  was  held  suffi- 
cient to  remove  the  bar  of  the  statute  of 
limitations,  even  when  such  payments 
were  made  by  the  jirincipal  debtor,  and 
the  suit  was  against  the  surety  tdone 
Joslyn  V.  Smith,'  13  Vt.  Rep.  353.] 
1  1  Phil.  Evid.  381. 


P 


-»^e^ 


^ 


-i?^  f 


^-c^  *" 


L-**«i>?^ 


1C4 


LAW   OF   EVIDENCE. 


[part  II. 


sary  to  call  the  agent  himself  to  prove  it ;  ^  but  wherever  what  he 
did  is  adiiiibsible  iii  evidence,  there  it  is  competent  to  prove  what 
he  said  about  the  act  while  he  was  doing  it ;  ^  and  it  follows,  that 
where  his  right  to  act  in  the  particular  matter  in  question  has 
ceased,  the  principal  can  no  longer  be  affected  by  his  declarations, 
Lthey  being  mere  hearsay.^  [  *  Then  the  declaration  of  the  driver  of 
vk  car,  after  the  car  had  stopped,  assigning  the  reason  why  he  did 
hot  stop  the  car,  and  thus  prevent  the  injury  to  plaintiff,  while 
Lrossing  the  street,  that  he  could  not  stop  the  car  because  the 
■brakes  were  out  of  order,  being  made  after  the  injury  was  in- 
Iflicted  and  the  transaction  terminated,  is  not  admissible  against 
the  company  in  whose  employ  such  driver  was,  it  being  mere 
hearsay.'*] 


1  Doe  V.  Hawkins,  2  Ad.  &  El.  212, 
N.  s. ;  Sauniere  v.  Wode,  3  Harrison,  R. 
299. 

'^  Garth  v.  Howard,  8  Bing.  451 ;  Fair- 
lie  V.  Hastings,  10  Ves.  12B,  127;  The 
Mechanics  Bank  of  Alexandria  v.  The 
Bank  of  Columbia,  5  Wheat.  336,  337  ; 
Laii^liorn  v.  Allmitt,  4  Taunt.  519,  i)er 
Glbbs,  J. ;  llannay  v.  Stewart,  6  Watts, 
487,  489 ;  Stockton  i-.  Uemuth,  8  Watts, 
39 ;  Story  on  Agency,  126,  129,  note  (2) ; 
Woods  V.  Banks,  14  N.  Hamp.  101  ; 
Cooley  V.  Norton,  4  Cush.  93.  In  a  case 
of  libel  for  damages,  occasioned  by  colli- 
sion of  ships,  it  was  held  that  tlie  admis- 
sion of  the  master  of  tlie  ship  proceedeil 
against  might  well  be  articulated  in  the 
libel.  The  Manchester,  1  W.  Bob.  62. 
But  it  does  not  appear,  in  the  report, 
whather  the  admission  was  made  at  the 
time  of  the  occurrence  or  not.  [The  dec- 
larations of  the  master  concerning  the 
contract  of  the  steamer,  are  admissil)le  in 
a  suit  against  the  owners.  The  Enter- 
prise, 2  Curtis,  C.  C.  317.]  Tlie  question 
has  been  discussed,  whether  there  is  any 
'substantial  distinction  between  a  written 
entry  and  an  oral  declaration  by  an  agent, 
of  the  tact  of  liis  having  receivetl  a  par- 
ticular rent  for  liis  employer.  The  case 
was  one  of  a  sub-agent,  employed  by  a 
steward  to  collect  rents,  and  the  declara- 
tion ottered  in  evidence  was,  "  M.  N.  paid 
nie  the  half-year's  rent,  and  here  it  is." 
Its  admis.'«ibility  was  argued,  both  as  a 
declaration  against  interest,  ami  also  as 
made  in  tlie  course  of  discliarging  a  duty  ; 
and  the  court  inclined  to  admit  it,  but 
took  time  for  advisement.  Fursdon  v. 
Clogg,  10  M.  &  W.  572;  infm,  §  149. 
See  also  Regina  r.  Hall,  8  C'.  &  P.  358; 
Allen  V.  Denstone,  Id.  76(t;  Lawrence  v. 
Thatcher,  6  C.  &  B.  669 ;  Bank  of  INIunroe 


V.  Field,  2  Hill,  R.  445;  Doe  v.  Hawkins, 

2  Ad.  &  El.  212,  N.  s.  Whether  the  dec- 
laration or  admission  of  the  agent  made 
in  regard  to  a  transaction  already  ])ast, 
but  while  his  agency  for  similar  objects 
still  continues,  will  bind  the  ])rincipal,does 
not  appear  to  have  been  expressly  de- 
cided ;  but  the  weight  of  authority  is  in 
the  negative.  See  the  observations  of 
Tindal,  C.  J.,  in  Garth  v.  Howard,  sK/tra. 
See  also  Mortimer  v.  McCallan,  6  M.  & 
W.  58,  69,  73  ;  Haven  v.  Brown,  7  Greenl. 
421,  424;  Thalhimer  v.  Brinkerhoff,  4 
Wend.  394  ;  City  Bank  of  lialtimore  v. 
Bateman,  7  liar.  &  Johns.  104  ;  v^tewart- 
son  r.  Watts,  8  Watts,  392;  Betham  v. 
Benson,  Gow.  R.  45,  48,  n. ;  Baring  v. 
Clark,  19  Pick.  220 ;  Parker  v.  Green,  8 
Met.  142,  143  ;  Plumer  v.  Briscoe,  12  Jur. 
351;  11  Ad.  &  El.  46,  n.  s.  [Hurnham  v. 
Ellis,  39  Maine,  319].  Where  the  fraudu- 
lent representations  of  the  vendor  are  set 
nj)  in  (lefence  of  an  action  for  the  i)rice  of 
land,  the  defence  may  be  maintained  by 
jtroof  of  such  representations  by  the  ven- 
dor's agent  who  effected  the  sale ;  but  it 
is  not  competent  to  inquire  as  to  his 
motives  or  inducements  for  making  them. 
Hammatt  r.  Emerson,  14  Shepl.  308. 

•*  Kevnolils  v.  Rowlev.  3  Rob.  Louis. 
R.  201 ;'  Stiles  v.  The  Western  Railroad 
Co.  8  Met.  44.  [The  declarations  of  a  son 
while  em])]o3'eil  in  ijcrfonning  a  contract 
for  his  services,  made  by  him  as  agi-iit  for 
his  father,  are  not  admissible  in  evidence 
to  prove  the  terms  of  the  contract.  Cor- 
bin  V.  Adams,  6  Cush.  93.  See  Print  up 
V.  Mitchell,  17  Geo.  558;  Covington,  &e. 
R.  R.  Co.  r.  Ingles,  15  B.  Mon.  637; 
Tuttio  r.  Brown,  4  Gray,  457,  460. | 

*  [*  Lul)y  V.  The  Hudson  River  Rail- 
road Co.,  17  New  York  Ct.  App.  131. 
But  in  Insurance  Company  v.  Woodruff, 


CHAP.  V,]  HEARS-AY.  135 

§  114.  It  is  to  be  observed,  that  tlic  rule  admitting  the  dechira- 
tions  of  tlw  agciit'is  founded  upon  the  legal  identity  of  the  agent 
and  the  principal ;  and  therefore  they  bind  only  so  far  as  there  is 
authority  to  make  them.^^  Where  this  authority  is  derived  by 
implication  from  authority  to  do  a  certain  act,  the  declarations  of 
the  agent,  to  be  admissible,  must  be  part  of  the  res  gestceP-  An 
authority  to  make  an  admission  is  not  necessarily  to  be  implied 
from  an  authority  previously  given  in  respect  to  the  thing  to  which 
the  admission  relates.^  Thus  it  has  been  held,^  that  the  declara- 
tions of  the  bailee  of  a  bond,  intrusted  to  him  by  the  defendant, 
were  not  admissible  in  proof  of  the  execution  of  the  bond  by  the 
bailor,  nor  of  any  other  agreements  between  the  plaintiff  and 
defendant  respecthig  the  subject.  The  res  gestce  consisted  in  the 
fact  of  the  bailment,  and  its  nature ;  and  on  these  points  only 
were  the  declarations  of  the  agent  identified  with  those  of  the 
principal.  As  to  any  other  facts  in  the  knowledge  of  the  agent, 
he  must  be  called  to  testify,  like  any  other  witness.^ 

[*  §  114(X.  Considerable  nicety  of  discrimination  will  be  found  in 
some  of  the  cases,  in  regard  to  the  extent  to  which  public  corporate 
companies,  engaged  in  the  transportation  of  freight  and  pa^sseiigers, 
are  responsible  for  the  declarations  and  admissions  of  their  agents 
and  employees,  through  whose  instrumentality  their  whole  business 
is  transacted.  In  general,  such  companies  are  not  responsible^r 
the  declarations  or  admissions  of  any  of  their  servants  beyond  the 
immediate  sphere  of  their  agency,  and  during  the  transaction  of 

2  Dutcher,  541,  it  was  held,  two  judtres  meant  that  such  declarations  are  ,evidea£C.„ 

dissenting,  that  the  declarations  and  ud-  only   wliere  they  rehite  to  the  identical 

missions  of  the  company's  agent,  author-  contract  that  is  the  matter  in  controversy, 

ized    to    receive   iiremimns   and   deliver  Dome  v.  Soutlnvork  Man.  Co.  11  Cush. 

policies,  respecting  the  delivery  of  a  pol-  205;  Fogg  v.  Cliild,  lo  Barb.  246.  | 
icy,  are  admissible,  and  bind  the  company  »  Phil.  &  Am.  on  Evid.  402.     As  to  thel 

in  an  action  upon   the   policy,  although  evidence  of  authority   inferred  from  cir-l 

made  after  the  loss.     But  this"  case  is  cer-  cumstances,  see  Story  on  Agency,  §  87-|- 

tainly    not    maintainable    upon    general  106,  259,  2(30.  | 

principles.]   ,  *  Fairlie  v.  Hastings,  10  Ves.  123. 

1  [Thus  where  the  cashier  of  a  bank,  ^  Masters  v.  Abraliam,  1  Esp.  375 
being  inquired  of  by  the  surety  upon  a  (Day's  ed.),  and  note  (1);  Story  on 
note,  said,  that  the  note  had  been  paid.  Agency,  §  135-143;  Johnston  r.  Ward, 
and  thereupon  the  suretv  released  prop-  6  Esp.  47.  [But  the  declarations  of  a 
ertv  which  he  held  to  indenmify  himself  professed  agent,  however  publicly  made, 
for'anv  liability  on  the  note,  when  in  fact  and  although  accompanied  by  acts,  as  by 
the  note  had  not  been  paid,  it  was  held  an  actual  signature  of  the  name  of  the 
that  these  statements  of  the  cashier  were  jirincipal,  are  not  competent  evidence  in 
not  within  his  authority,  and  were  inad-  favor  of  third  jiersons  to  i^rove  the  anthor- 
missible  against  the  bank.  Bank  v.  Stew-  ity  of  the  agent,  when  questioned  by  the 
ard,  37  iNlaine,  519.  See  also  Rmik  v.  iirincipal.  Mussey  r.  Beecher,  3  Cush. 
Ten  Evck,  4  Zabr.  756.]  517;    Brigham   r.   Peters,   1   Gray,   14o; 

2  [By  being  part  of  the  res  gestcB,  is  Trustees,  &c.  v.  Bledsoe,  5  Ind.  133.] 


13G  LAW    OF    EVIDENCE.  '  [PART    II. 

the  business  in  -svhicli  tlicy  are  employed.  Thus  the  clcdara- 
tions  oif'tlnrcoiiductor  of  aYaTIway  train,  as  to  the  mode  in  wliich 
an  accident  occurred,  made  after  its  occurrence  ;  ^  or  those  of  an 
engineer,  made  under  similar  circumstances,  ^  are  not  admissible. 
But  it  has  sometimes  been  held,  in  such  cases,  that  the  admis- 
sions of  the  president  of  the  company,  or  of  its  general  agent, 
miiiht  be  received  without  regard  to  their  forming  part  of  any 
])artieular  act  of  agency ;  it  being  assumed  that  all  his  declara- 
tions about  the  business  of  the  company  came  within  the  range 
of  his  agency ,2  l)ut  this  seems  questionable.  But  in  an  action 
against  a  railway  comi)any,  for  the  loss  of  baggage,  the  declara- 
tions of  the  baggage-master,  conductor,  or  station  agent,  as  to  the 
manner  of  the  loss,  made  in  answer  to  inquiries  on  behalf  of  the 
owner,  the  next  morning  after  the  loss,  were  held  admissible,  and 
as  coming  witliin  the  scope  of  tlie  agency  and  during  its  continu- 
ance.*] 

§  115.  It  is  upon  the  same  ground  that  certain  entries,  made  hy 
third  persons,  are  treated  as  original  evidence.  Entries  l)y  third 
persons  are  divisible  into  two  classes  :  first,  those  which  are  made 
in  the  discharge  of  official  duty,  and  in  the  course  of  professional 
employment ;  and,  secondly,  mere  private  entries.  Of  these  latter 
we  shall  hereafter  speak.  In  regard  to  the  former  class,  the  entry, 
to  bo  admissible,  must  be  one  which  it  was  the  person's  duty  to 
make,  or  which  belonged  to  the  transaction  as  part  thereof,  or 
which  was  its  usual  and  proper  concomitant.^  It  must  speak  only 
to  that  which  it  was  his  duty  or  business  to  do  ;  and  not  to  extra- 
neous and  foreign  circumstances.^  The  party  making  it  must  also 
have  had  com])etent  knowledge  of  the  fact,  or  it  must  have  been 
part  of  his  duty  to  have  known  it ;  there  must  have  been  no  par- 
ticular motive  to  enter  that  transaction  falsely,  more  than   any 

1  [*  Griffin  v.  Montgomery,  &c.,  R.  E.  1B2.     [The  book  of  minutes  of  a  railroad 

Co.,  *26  (ieo.  K.  111.  comi)any   are   admissible   to  prove  what 

^'  l\()bin.son  v.  Fitchburgh  R.  R.  Co.,  7  took  jilacc  at  a  meeting  of  the  stockholders 

Gray,  '-Vl.  of  tiic  company.     Black  v.  Lamb,  1  Beas- 

3  Charleston,  &c.  R.  R.  Co.  t;.  Blake,  ley,  108.] 
12  Rich.  Law,  (liU.  ''  Chambers  v.  Bernasconi,  1  C.  &  J. 

*  M()r>e  V.  Couji.  River  R.  R.  Co.,  6  451 ;  1  Tyrwh.  355,  s.  c. ;   1  Cr.  Mees.  & 

Gray,  4-jl).l  R.  347,  s.  c.     In  error.     This  limitation 

s'Thf  doctrine  on  the  subject  of  con-  has  not  been  applied  to  private  entries 
temporancons  entries  is  briefly  but  lucid!}'  ngainst  the  interest  of  the  party.  Thus, 
exj)oimded  by  Mr.  Justice  I'iirke,  in  Doe  where  the  jiayee  of  a  note  agahist  A.,  B., 
d.  rattcshall  c  Turford,  3  B.  &  Ad.  H"JO.  &  t'.,  indorsed  a  partial  payment  as  re- 
See  also  Poole  v.  Dicas,  1  Bing.  n.  c.  ceived  from  B.,  adding  that  the  whole 
654  ;  Bickering  '-.  Bp.  of  Ely,  "2  Y.  &  C.  sum  was  originally  advanced  to  A.  only ; 
241i;  Begina  v.  Worth,  4  Ad.  &  El.  n.  s.  in  an  action  hy  B.  against  A.,  to  recover 


CHAP,  v.]  HEARSAY.  137 

other ;  and  the  entry  must  have  been  made  at  or  about  the  time 
of  tlie  transaction  recorded.  In  such  cases,  the  entry  itself  is  ad- 
mitted as  original  evidence,  being  part  of  the  res  gestce.  The  gen- 
eral interest  of  the  party,  in  making  the  entry,  to  show  that  he  has 
done  his  official  duty,  has  nothing  to  do  with  the  question  of  its 
admissibility  ;  ^  nor  is  it  material  whether  he  was  or  was  not  com- 
petent to  testify  personally  in  the  casc.^  If  he  is  living,  and 
competent  to  testify,  it  is  deemed  necessary  to  produce  him.'^  But 
if  he  is  called  as  a  witness  to  the  fact,  the  entry  of  it  is  not  thereby 
excluded.  It  is  still  an  independent  and  original  circumstance,  to 
be  weighed  with  others ;  whether  it  goes  to  corroborate  or  to  im- 
peach the  testimony  of  the  witness  who  made  it.  If  the  party  who 
made  the  entry  is  dead,  or,  being  called,  has  no  recollection  of  the 
transaction,  but  testifies  to  his  uniform  practice  to  make  all  his 
entries  truly,  and  at  the  time  of  each  transaction,  and  has  no 
doubt  of  the  accuracy  of  the  one  in  question ;  the  entry,  unim- 
peached,  is  considered  sufficient,  as  original  evidence,  and  not 
hearsay,  to  establish  the  fact  in  question.^ 
y  §  116.  One  of  the  earliest  reported  cases,  illustrative  of  this  sub- 
ject,  was  an  action  of  assumpsit,  for  beer  sold  and  delivered,  the 
plaintiff  l^eing  a  brewer.  The  evidence  given  to  charge  the  de- 
fendant was,  that,  in  the  usual  course  of  the  plaintiff's  business, 
the  draymen  came  every  night  to  the  clerk  of  the  brewhouse,  and 
gave  him  an  account  of  the  beer  delivered  during  the  day,  which 
he  entered  in  a  book  kept  for  that  purpose,  to  which  the  draymen 

the  money  thus  paid  for  his  use,  the  in-  And  see  Doe  v.  Wittcomb,  15  Jur.  778. 

dorsement  made  by  the  payee,  who  was  [*  But  if  the  entry  was  not  in  the  course 

dead,  was  held  admissible  to  prove  not  of  the  duty  of  the  person,  and  not  against 

only  the  payment  of  the  money,  but  the  his  interest,  it  is  not  receivable.    Webster 

other  fact  a"s  to  the  advancement  to  A.  v.  Webster,  1  F.  &  F.  401.] 
Davies  v.  Humplirevs,  6  Mees.  &  Welsh.  '^  Gleadow  v.  Atkin,  1  Cromp.  &  Mees. 

153;  Marks  v.  Lahe"e,  3  Bing.  n.  c.  408.  423,  424;  3  Tyrw.  302,  303,  s.  c. ;   Short 

JAnd'  in  a  subsequent  case  it  was  held,  i>.  Lee,  2  Jac.  &  Walk.  489. 
that  where  an  entry  is  admitted  as  being  ^  Nichols    v.   Webb,    8   Wheat.    326; 

against  the  interest  of  the  party  making  Welch  v.  Barrett,  15  Mass.  880;  Wilbur 

it"  it  carries  with  it  the  whole  statement;  v.  Seldeu,  6  Cowen,  162;  Farmers  Bank 

[but  that  if  the  entry  is  made  merely  in  the  v.  Whitehill,  16  S.  &  K  89,  90;    Stokes 

[course  of  a  man's  duty,  then  it  dOes  not  v.  Stokes,  6  Martin,  n.  s.  351;  Herring  v. 

go  beyond  those  matters  which  it  was  his  Levy,  4  Martin,  n.^  s^?83  ;    Brewster  v. 

[duty  to  enter.    Percival  v.  Nanson,  7  Eng.  Doan,  2  Hill,  N.  Y.  Kep.  537  ;  Davis  v. 

Law  &  Eq.  Rep.  538;   21  Law  J.  Rep.  Fuller,  12  Verm.  178. 
Exch.  1,  N.  s. ;  7  Kxch.  Rep.  1,  s.  c.  •*  Bank  of  Monroe  v.  Culver,  2  Hill, 

1  Per  Tindal,  C.  J.,  in  Poole  v.  l^icas,  531  ;  Now  Haven  County  Bank  v.  Mitch- 

1  Bing.  X.  c.  654;    Dixon  v.   Cooper,  3  ell,  15  Conn.  R.  206;  Bank  of  Tennessee 

Wils.  40 ;  Benjamin  v.  Porteous.  2  H.  Bl.  v.  Cowen,  7  Humph.  70.     See  infra,  §§ 

590;  Williams  y.  Geaves,  8  C.  &P.  592;  436,   437,   note    (4).     [The  protest  of  a 

Augusta  V.  Windsor,  1  Appleton,  R.  317.  notary-pubhc,  authenticated  in  the  usual 

12* 


LAW   OF   EVIDENCE. 


[part  II. 


set  their  hands  ;  and  this  entry,  with  proof  of  the  drayman's  hand- 
writin"-,  and  of  his  death,  was  held  sufficient  to  maintain  the  action. ^ 
lu  another  case,^  before  Lord  Kenyon,  which  was  an  action  of  tro- 
ver for  a  watch,  where  the  question  was,  whether  the  deH-'udant 
had  deUvcrcd  it  to  a  third  person,  as  the  phiintiff  had  directed ; 
an  entry  of  the  fact  by  the  defendant  himself  in  his  shop-book, 
kept  for  that  purpose,  with  proof  that  such  was  the  usual  mode, 
was  held  admissible  in  evidence.  One  of  the  shopmen  had  sworn 
to  the  delivery,  and  his  entry  was  offered  to  corroborate  his  testi- 
mony ;  but  it  was  admitted  as  competent  original  evidence  in  the 
cause.  So,  in  another  case,  where  the  question  was  upon  the  pre- 
cise day  of  a  person's  birth,  the  account-book  of  the  surgeon  who 
attended  liis  mother  on  that  occasion,  and  in  wdiich  his  profes- 
sional services  and  fees  were  charged,  was  held  admissible,  in  proof 
of  the  day  of  the  birth.^  So  where  the  question  was,  whether  a 
notice  to  quit  had  been  served  upon  the  tenant,  the  indorsement 
of  service  upon  a  copy  of  the  notice  by  the  attorney  who  served 
it,  it  being  shown  to  be  the  course  of  business  in  his  office  to  pre- 
serve copies  of  such  notices,  and  to  indorse  the  service  thereon, 
was  held  admissible  in  proof  of  the  fact  of  service.-^     Upon  the 


^e^ 


■way  by  his  sij^nature  and  official  seal, 
found  among  his  pajjers  after  his  deatli,  is 
good  sccoiulari/  evidence.     Porter  v.  Jiid- 

/•son,  1  Gray,  175.]  But  upon  a  question 
of  the  infancy  of  a  Jew,  where  the  time 
of  his  circumcision,  whicli  by  custom  is 
on  tlie  eij^lilli  day  after  his  birth,  was  pro- 
posed to  be  sliowii  by  an  entry  of  the 
fact,  made  by  a  deceased  Kabbi,  whose 
duty  it  was  to  perform  the  office  and  to 
make  the  entry ;  the  entry  was  held  not 
receivable.  Davis  v.  Lloyd,  1  Car.  &  Kir. 
275.  Perhaps  because  it  was  not  made 
against    tiie    j)ecuniary    interest    of    tlie 

^iabbi.  See  infra,  §  1-47.  [*  The  ques- 
tion involved  in  the  preceding  section  is 
considerably  discussed  by  a  learned  writer, 
and  tlie  cases  carefully  reviewed  in  a  lead- 
ing article,  o  Law  Heg.,  n.  .s.  641. J 

1  Price  )'.  Lord  Torrington,  1  Salk. 
285 ;  2  Ld.  Raym.  873,  s.  c. ;  1  Smith's 
Leading  Cases,  139.  But  the  courts  are 
not  disposed  to  carry  the  doctrine  of  this 
case  any  farther.  11  M.  &  W.  775,  776. 
Therefore,  where  tlie  coals  sold  at  a  mine 
were  re|)orted  daily  by  one  of  the  work- 
men to  the  foreman,  who,  not  being  able 
to  write,  emi)l<)yed  another  person  to  en- 
ter the  sales  in  a  book ;  it  was  held,  the 
foreman  and  the  workman  who  reported 
the  sale,  both  being  dead,  that  the  book 


was  not  admissible  in  evidence,  in  an  ac- 
tion for  the  price  of  the  coals.  Brain  v. 
Preece,  11  M.  &  W.  773;  [*  Lewis  v. 
Kramer,  3  Md.  265.] 

-  Digby  V.  Stedman,  1  Esp.  328. 

3  Iligham  v.  Kidgway,  10  East,  109. 
See  also  2  Smith's  Leading  Cases,  183- 
197,  note,  and  the  connnents  of  Bayley, 
B.,  and  of  Vaughan,  B.,  on  this  case,  in 
Gleadow  v.  Atkin,  1  Cromp.  &  Mees.  410, 
423,  424,  427,  and  of  Professor  Parke,  in 
the  London  Legal  Observer  for  June,  1832, 
}).  22'J.  It  will  be  seen,  in  that  case,  that 
the  fact  of  the  surgeon's  performance  of 
the  service  charged  was  abundantly  proved 
by  other  testimony  in  the  cause  ;  and  that 
notiiing  remained  but  to  ])rove  the  precise 
time  of  performance;  a  fact  in  which  the 
surgeon  bad  no  sort  of  interest.  But  if  it 
were  not  so,  it  is  not  ]iercei\ed  what  dif- 
ference it  could  have  made,  the  princi|)le 
of  admissibility  being  tiie  contemporane- 
ous character  of  the  entry,  as  ])art  of  the 
res  (jesUc.  See  also  Herbert  v.  Tuckal,  T. 
Kaym  84  ;  Augusta  v.  Windsor,  1  Apple- 
ton,  K.  317. 

■»  Doe  u.  Turford,  3  Barn.  &  Ad.  890; 
Champneys  v.  Peck,  1  Stark.  R.  326  ;  Rex 
V.  Cope,  7  C.  &P.  720.  [Where  such  an. 
indorsement  of  service  had  been  admitted 
to  prove  the  fact  of  service  of  notice,  the 


CHAP,  v.] 


HEARSAY. 


139 


same  ground  of  the  contcmporancoos  character  of  an  entry  made 
in  the  ordinary  course  of  business,  the  books  of  the  messenger  of 
a  bank,  and  of  a  notary-public,  to  prove  a  demand  of  payment 
from  the  maker,  and  notice  to  the  indorser  of  a  promissory  note, 
have  also  been  held  admissible.^  The  letter-book  of  a  merchant, 
party  in  the  cause,  is  also  admitted  as  primd  facie  evidence  of  the 
contents  of  a  letter  addressed  by  him  to  the  other  party,  after  no- 
tice to  such  party  to  produce  the  original ;  it  being  the  habit  of 
merchants  to  keep  such  a  book.^  And,  generally,  contcmporan-/ 
eous  entries,  made  by  third  persons,  in  their  own  books,  in  the 
ordinary  course  of  business,  the  matter  being  within  the  peculiar 
knowledge  of  the  party  making  the  entry,  and  there  being  no  ap- 
parent and  particular  motive  to  pervert  the  fact,  are  received  as 
original  evidence ;  ^  though  the  person  who  made  the  entry  has 
no  recollection  of  the  fact  at  the  time  of  testifying ;  provided  he 
swears  that  he  should  not  have  made  it,  if  it  were  not  true.*  The 
same  principle  has  also  been  applied  to  receipts,  and  other  acts 
contemporaneous  with  the  payment,  or  fact  attested.^ 

§  117.  The  admission  of  the  party's  own  shop-books,  in  proof  of 


person  who  made  tlie  service  and  the  in- 
dorsement bein^  dead,  parol  dechirations 
of  his,  coutradictinw  the  indorsement, 
were  held  inadmissible.  Stapylton  v. 
Clougli,  22  Eno-.  Law  &  Eq.  R.  275.] 

1  Nichols  V.  Webb,  8  Wheat.  326 ; 
Welch  V.  Barrett,  15  Mass.  R.  380 ;  Poole 
V.  Uicas,  1  Bing.  n.  c.  649  ;  Halliday  v. 
Martinett,  20  Johns.  1G8;  Butler  t;.  Wright, 
2  Wend.  36U;  Hart  v.  Williams,  Id.  513; 
Nichols  y.  Goldsmith,  7  Wend.  160 ;  New 
Haven  Co.  Bank  v.  Mitchell,  15  Conn. 
206 ;  Sheldon  v.  Benham,  4  Hill,  N.  Y. 
R.  123.  [In  an  action  against  an  infant 
for  money  jiaid  by  the  plaintiti'  to  a  tlnrd 
person  at  the  infant's  reipiest,  for  articles 
fm-nished  the  infant  by  such  third  jierson, 
the  defence  of  infancy  being  set  up,  the 
hooks  of  account  and  the  testimony  of  such 
third  person  are  aifmissible  to  show  that 
the  articles  furnished  the  infant  were  nec- 
essaries. Swift  V.  Bennett,  10  Cush.  436, 
43y.] 

-  Pritt  V.  Fairclough,  8    Campb.  305; 

,  Hagedoin  v.  Reid,  Id.  377.  The  letter- 
book  is  also  evidence  that  the  letters  cop- 
ied into  it  have  been  sent.  But  it  is  not 
evidence  of  any  other  letters  in  it,  than 
those  which  the  adverse  jiarty  has  been  re- 
quired to  produce.  Sturge  v.  Buclianan, 
2  P.  &  D.  573 ;  10-  Ad.  &  El.  508,  s.  c. 

*  3  Doe  V.  Turford,  3  B.  &  Ad.  890,  jwr 
Parke,  J. ;  Doe  v.  Robson,  15  East,  32 ; 


Goss  V.  Watlington,  3  Br.  &  B.  132 ;  Mid- 
dleton  V.  IMelton,  10  B.  &  Cr.  317  :  Marks 
V.  Lahee,  3  Bing.  n.  c.  408,  420,  per 
Pai'ke,  J. ;  Poole  v.  Dicas,  1  Bing.  n.  c. 
649,  653,  654  ;  Dow  v.  Sawyer,  16  Shepl. 
117.  In  Doe  v.Vowles,  1  M.  &  Rob.  216,  the 
tradesman's  bill,  which  was  rejected,  was 
not  contemporaneous  with  the  fact  done. 
Haddow  v.  Parrv,  3  Taunt.  303  ;  Whitnash 
V.  George,  8  B.  &  Cr.  5-56  ;  Barker  v.  Ray, 
2  Russ."63,  76  ;  Patton  v.  Crais:,  7  S.  &  R. 
116,  126;  Farmers  Bank  v.  Whitehill,  16 
8.  &  R.  89  ;  Nourse  r.  McCav,  2  Rawle,  70 ; 
Clark  V.  Magruder,  2  II.  &  J.  77;  Richard- 
son V.  Carv,  2  Rand.  87  ;  Clark  v.  Wilmot, 
1  Y.  &  Col.  N.  s.  53. 

*  Bunker  v.  Shed,  8  Met.  150. 

^  Sherman  r.  Crosby,  11  Johns.  70; 
Holladay  v.  Littlepage',  2  Munf  316; 
Prather  t'.  Johnson,  3  II.  &  J.  487;  Sher- 
man V.  Atkins,  4  Pick.  283  ;  Carroll  v.  Ty- 
ler, 2  II.  &  G.  54;  Cluggage  r.  Swan,  4 
Binn.  150,  154.  But  the  letter  of  a  third 
person,  acknowledging  the  receipt  of  mer- 
chandise of  the  plaintiff,  was  rejected,  in 
an  action  ag.iinst  the  party,  who  had  rec- 
ommended him  as  trustworthy,  in  I-onge- 
necker  r.  Hyde,  (>  Binn.  1. ;  and  the  re- 
ceipts of  living  persons  were  rejected  in 
Warner  v.  Price,  3  Wend.  397;"Cutbush 
V.  Gilbert,  4  S.  &  R.  551 ;  Spargo  i\  Brown, 
9  B.  &  C.  935.     See  infra,  §  120. 


140 


LAW    OF   EVIDENCE. 


[I'AIIT   11. 


the  delivciT  of  goods  therein  charged,  the  entries  having  been 
made  by  his  clerk,  stands  upon  the  same  principle  which  we  are 
now  considering.  The  books  nnist  have  been  kejit  Ibr  the  purpose  ; 
and  tlie  entries  must  have  been  made  contemporaneous  with  the 
delivery  of  the  goods,  and  \)y  the  person  whose  duty  it  was,  f(jr 
the  time  being,  to  make  them.  In  such  cases  the  books  are  ludd 
admissible,  as  evidence  of  the  delivery  of  the  goods  therein  charged, 
where  the  nature  of  the  subject  is  such  as  not  to  render  better  evi- 
dence attainable.^ 

§  118.  In  the  United  States,  this  principle  has  been  carried  far- 
ther, and  extended  to  entries  made  by  the  jyarty  himself,  in  his  own 
shop-books.^     Though  this  evidence  has  sometimes  been  said  to  be 


1  ritnian  v.  Maddox,  2  Salk.  G'lO  ;  Ld. 
Eaym.  l'6'l,  s."  c.  ;  Letebure  v.  Worden,  2 
Vc'S.  54,  55 ;  Glynn  v.  The  Bank  of  Eng- 
land, Id.  40 ;  Sterret  v.  Bull,  1  Binn.  234. 
See  also  Tait  on  Evid.  p.  276.  An  inter- 
val of  one  day,  between  the  transaction 
and  the  entry  of  it  in  the  book,  has  been 
deemed  a  valid  objection  to  the  admissi- 
bility of  the  book  in  evidence.  Walter  v. 
BoUnian,  8  Watts,  544.  But  the  law  fixes 
no  precise  rule  as  to  the  nionicnt  when  the 
entry  ought  to  be  made.  It  is  enough  if 
it  be  made  "  at  or  near  the  time  of  the 
transaction."  Curren  v.  Oawford,  4  8.  & 
R.  o,  5.  Therefore,  where  the  goods  w^ere 
delivered  by  a  servant  during  the  day, 
and  the  entries  were  made  by  the  master 
at  night,  or  on  the  following  morning, 
from  the  memorauduins  made  by  the  ser- 
vant, it  was  held  sullicient.  Ingraham  r. 
Bockius  '.I  S.  &  K.  285.  But  such  entries, 
made  later  than  the  succeeding  day,  have 
been  rejected.  Cook  r.  Ashmead,  2  Miles, 
R.  2tJ8.  Wlicre  daily  memoranda  were  kept 
by  workmen,  but  the  entries  were  made  by 
the  employer  sometimes  on  the  day,  some- 
times every  two  or  three  days,  and  one 
or  two  at  longer  intervals,  they  were  admit- 
ted. Morris  v.  Briggs,  3  Cush.  342.  jSee 
also  Barker  r.  IlaskeU,  9  Cush.  218  ;  Hall 
r.  (jlidden,  3'.t  Maine,  445.  But  see  Kent 
V.  Garvin,  1  (jray,  148.]  Whether  entries 
transcriijed  from  a  slate,  or  card,  into  the 
book,  are  to  tie  deemed  original  entries,  is 
not  universally  agreed.  In  Mussrirliiiscttf!, 
they  aro  admitted.  Faxon  v.  Ilollis,  13 
Mass.  427 ;  [Smith  v.  Sanford  12  I'ick. 
13'.J ;  Barker  r.  Haskell,  9  Cush.  218.]  In 
Pcnttsi/lcaiiid.  they  were  rejected,  in  Ogden 
V.  Miller,  1  Browne,  147 ;  but  have  since 
been  admitted,  where  they  were  trans- 
cribed forthwith  into  the  book  ;  Ingraham 
V.  Hockius, '.)  S.  &  R.  285  ;  Patton  v.  Hyan, 
4  Rawle,  408 ;   Jones  v.  Long,  3   Watts, 


325;  and  not  later,  in  the  case  of  a  me- 
chanic's charges  for  his  work,  than  the 
evening  of  the  second  day.  Hartly  v. 
Brooks,  6  Whart.  189.  But  where  sever- 
al intermediate  days  elajtsed  betbre  they 
were  thus  transcribed,  tlie  entries  have 
been  rejected.  Forsythe  i'.  Norcross,  5 
Watts,  432.  But  see  Koch  v.  Howell,  6 
Watts  &  8erg.  350.  [Such  entries  are  not 
written  contracts,  but  the  private  memo- 
randa of  the  party,  becoming,  with  the  aid 
of  his  sujipletory  oath,  under  an  exce])tion 
to  the  general  rules,  competent  evi(lence 
of  sale  and  delivery.  Although  compe- 
tent and  strong  evidence  as  attecting  the 
party  offering  them,  yet  they  arc  not  con- 
clusive, but  may  be  explained,  and,  as  it 
would  seem,  may  be  shown  to  have  been 
erroneous,  'i'hus,  in  an  action  for  goods 
sold  and  delivered,  if  the  ])laintilf',  to  prove 
his  case,  jiroduces  his  books  of  account,  in 
which  the  goods  are  charged  to  «  third 
person ;  he  may  then  be  jiermitted  to 
show  by  parol,  that  the  goods  were  not 
sold  to  such  third  person,  but  were  sold  to 
the  defeiulaut,  and  were  charged  to  such 
person  at  the  defendant's  re([uest.  James 
V.  Spaulding,  4  Gray,  451.]  [*It  seems 
to  have  been  questioned  whether  the 
docket,  or  book  of  accounts,  kejit  by  an 
attorney  is  competent  evidence,  in  itself, 
of  his  right  to  recover  for  his  services. 
Hale's  Ex'rs  i\  Ard's  Kx'rs,   12  Wright, 

Penn.  St. ;  Briggs  r.  Georgia,  15  Vt. 

Rep.  61.  And  the  party's  cash-book  of 
entries  of  money  paid  and  received  is  not 
ailmissible  as  evidence  of  a  iiarticular  ]iay- 
ment.     Maine  v.  Harper,  4  Allen,  115. | 

■^  In  the  following  states  the  admission 
of  the  j)arty's  own  books,  and  his  own  en- 
tries, has  been  either  expressly  permitted, 
or  recognized  and  regulateil  by  statute ; 
namely,  Vermont  (1  Tolman's  Dig.  185)  ; 
Connecticut  (Rev.  Code,  1849,  tit.  1,  §  216) ; 


CHAP,  v.] 


HEARSAY. 


141 


adiiiittcd  contrary  to  the  rules  of  the  common  law,  yet  in  general 
its  admission  will  be  found  in  perfect  harmony  with  those  rules, 
the  entry  being  admitted  only  where  it  was  evidently  contempora- 
neous with  the  fact,  and  part  of  the  res  gestce.  Being  the  act  of 
the  party  himself,  it  is  received  with  greater  caution ;  but  still  it 
may  be  seen  and  weighed  by  the  jury.^ 


Dehwarc  (St.  25  Goo.  II.,  TJov.  Code,  1829, 
p.  8U) ;  J\f(in/I(nul,  as  to  sums  under  ten 
pounds  in  a  vear(l  Dorsey's  Laws  of  Ma- 
ryland. 73,  203)  ;  Vlir/inia  (Stat.  1819,  1 
Kev.  Code,  cli.  128,  §^'7,  8,  9)  ;  North  Car- 
olina (Stat.  1756,  eh.  57,  §  2,  1  Rev.  Code, 
1836,  cli.  15);  South  Carolina  (St.  1721, 
Sept.  20.  See  Statutes  at  Large,  vol.  3, 
p.  799,  Cooper's  edit.  1  Bay,  43)  ;  Tennessee 
(Statutes  of  Tennessee,  by  Carruthers  and 
Nicliolsoii,  p.  131).  In  Louisiana  and  in 
Rlarjilaiid  (execpt  as  above),  entries  made 
by  the  j)arty  hini.self  are  not  admitted. 
Civil  Code  of  Louisiana,  Arts.  2244,  2245  ; 
Johnson  v.  Ureedlove,  2  Martin,  n.  s.  508; 
Herring  v.  Levy,  4  .Martin,  n.  s.  383 ;  Cav- 
elier  v.  Collins,  3  Martin,  188  ;  Martinstein 
V.  Creditors,  8  Rob.  6  ;  Owings  i'.  Hender- 
son, 5  Gill  &  Johns.  124,  142^  In  all  the 
other  states  the}'  are  admitted  at  common 
law,  under  various  degrees  of  restrictjpn. 
See  Coggswell  v.  Doiliver,  2  Mass.  217; 
Poultney  v.  Ross,  1  Dall.  239  ;  Lj-nch  v. 
McHugo,  1  Bav,  33  ;  Poster  v.  Sinkler,  Id. 
40  ;  Slade  r.  Teasdale,  2  Bay,  173  ;  Liuiib 
V.  Hart,  Id.  3Ci2  ;  Thomas  r.,  Dyott,  1  Nott 
&  McC.  18G  ;  Burnham  v.  Adams,  5  Verm. 
313 ;  Story  on  Confl.  of  Laws,  526,  527. 

1  The  rules  of  the  several  states  in  re- 
gard to  the  admission  of  this  evidence  are 
not  perfectly  uniform ;  but  in  what  is 
about  to  be  stated,  it  is  believed  that  they 
concur.  Before  the  books  of  the  party 
can  be  admitted  in  evidence,  they  are  to 
be  submitted  to  the  inspection  of  the 
court,  and  if  they  do  not  appear  to  be  a 
register  of  the  daily  business  of  the  party, 
and  to  have  been  honestly  anil  fiiirly  kept, 
they  are  excluded.  If  they  appear  niani- 
lestly  erased  and  altered,  in  a  material 
part,  they  will  not  be  admitted  imtil  the 
alteration  is  explained.  Churchman  v. 
Smith,  6  Whart.  106.  The  form  of  keep- 
ing tliem,  whether  it  be  that  of  a  journal 
or  ledger,  does  not  atlect  their  admissibil- 
ity, however  it  may  go  to  their  credit  to 
the  jury.  Coggswell  v.  Doiliver,  2  Mass. 
217;  Prince  v.  Smith,  4  Mass.  455,  457; 
Faxon  v.  Hollis,  13  Mass.  427 ;  Rodnuvn 
V.  Hoops,  1  Dall.  85;  Lvnch  v.  Mcllugo, 
1  Bay,  33  ;  Foster  v.  'Sinkler,  Id.  -io ; 
Slade  V.  Teas<lale,  2  Bay,  173;  Thomas  v. 
Dyott,  1  Nott  &  McC.  186  ;  Wilson  v. 
Wilson,  1  Halst.  95;   Swing  v.  Sjjarks,  2 


Halst.  59 ;  Jones  ?'.  DeKay,  Pennington, 
R.  695 ;  Cole  v.  Anderson,  3  Halst.  68 ; 
Mathes  v.  Robinson,  8  Met.  269.  [Nor 
can  the  entries  be  invalidated  by  proof 
that  sek'eral  j'ears  previous  to  the  date  of 
the  entries  the  party  making  the  entries 
had  kept  tw<j  books  of  original  entries,  in 
which  he  chargeil  the  same  articles  at  dif- 
ferent prices.  Gardner  v.  AVay,  8  Gray, 
189.]  If  the  books  appear  free  from 
fraudulent  practices,  and  proper  to  be  laid 
before  the  jury,  the  party  himself  is  then 
required  to  make  oath,  in  open  court, 
that  they  are  the  books  in  which  the 
accounts  of  his  ordinary  business  transac- 
tions are  usually  kept;  Frve  v.  Barker.  2 
Pick.  65 ;  Taylor  v.  Tucker,  1  Kelly,  R. 
233 ;  and  that  the  goods  therein  charged 
were  actually  sold  and  delivered  to,  and 
the  services  actually  performed  for  the 
defendant.  Dwinel  v.  I'ottle,  1  Redingt. 
1G7.  [And  where  goods  are  delivered  by 
one  partner  and  the  entries  are  made  by 
anotlier,  each  partner  may  testify  to  his 
part  of  the  transaction,  and  the  entries 
mav  then  be  admitted.  Ilarwood  r. 
Mulry,  8  Gray,  250.]  An  affidavit  to  an 
account,  or  bill  of  particularsV'is 'not  au- 
missible.  Wagoner  v.  Richmond,  Wright,' 
Ik.  173;  unless  made  so  by  statute. 
Whether,  if  the  party  is  abroad,  or  is  un- 
able to  attend,  the  court  will  take  his  oath 
under  a  commission,  is  not  perfectly  clea'r. 
Tiie  opinion  of  Parker,  C. .!.,  in  2  Pick. 
67,  was  against  it ;  and  so  is  Nicliolson  v. 
Withers,  2  McCord,  428 ;  but  in  Spence  v. 
Saunders,  1  I'ay,  119,  even  his  attidavit 
was  deemed  suUicient,  ujjon  a  writ  of  in- 
quiry, the  defendant  having  suffered  judg- 
ment by  default.  See  also  Douglas  r. 
Hart,  4  McCord,  257  ;  Furman  v.  I'eay,  2 
Bail.  394.  He  must  also  swear  that  the 
articles  therein  charged  were  actually  de- 
livered, and  the  labor  and  services  actually 
perforiueil ;  that  the  entries  were  made  at 
or  about  the  time  of  the  transactions,  and 
are  the  original  entj-ies  thereof;  and  that 
the  sums  charged  and  claimed  have  not 
been  paid.  3  Dane's  Abr.  ch.  81,  art.  4, 
§§  1,  2;  Coggswell  v.  Doiliver,  2  Mass. 
217  ;  Ives  v.  Niles,  5  Watts,  324.  If  the 
party  is  dead,  his  books,  though  rendered 
of  much  less  weight  as  evidence,  may  still 
be  offered  by  the  executor  or  administra- 


142 


LAW   OF   EVIDEN'CE. 


[part  II. 


§  110.  But,  if  the  Aiueiicau  rule  of  admittiug  the  party's  own 
entries  in  evidence  for  him,  under  the  limitations  mentioned  be- 


tor,  lie  inakintT  oath  tliaf  they  came  to  his 
liaiuls  as  the  •Genuine  and  only  books  of 
account  of  tlie  deccaseil ;  that,  to  tlie  best 
of  liis  knowlediie  and  behef,  the  entries 
are    ont^inal   and    contemi)oran(*ons    with 
the  fact,  and  the  debt  unpaid  ;  witii  jiroof 
of  the  party's  iiandwritinj,'.      Benlley  v. 
JloUcnback,^   Wright,    K.    lU'J ;    JMcLeUan 
I'.  Crofton,  ()  Greeni.  307  ;  Prince  r.  Smith, 
4  Mass.  455  ;  Odeli  v.  Culbert,  'J  \V.  &  S. 
(jt).     if  tlie  party  has   since   become   in- 
sane, the  book  may  still  be  admitted  in 
evidence,  on  proof  of  tlie  fact,  and  that 
tlie  entries  are  in  his  handwritinuc,  with  the 
sniijiletory   oatii   of  his  guardian.      And 
whether   Uie   degree  of  insanity,  in   the 
particular  case,  is  such  as  to  justify  the 
admi^sion  of  the  book,  is  to  be  determined 
by  tiie  judge,  in  his  discretion.     Ilolbrook 
V.  Gay,  t)  Cush.  215.     The  book  itself 
must  be  the  registry  of  business  actually 
done,  and  not  of  orders,  executory  con- 
tracts, and  things  to  be  done  subsequent 
to  the  entry.     Fairchild  v.  Dennison,  4 
Watts,  258  ;   Wilson  v.  Wilson,  1  Halst. 
96;   Bradley   v.    Goodyear,    1  Day,   104, 
10b  ;  Terrill  v.  Beecher,  9  Conn.  344,  348, 
349  ;  and  the  entry  must  have  been  made 
tor  the   purpose   of  charging   the    debtor 
with  the  delit;  a  mere  memorandum,  tor 
any   other  purpose    not    being   sutHcient. 
Thus,  an  invoice-book,  and  the  memoran- 
dums in  the  margin  of  a  blank  check-book, 
showing  the  dale  and  tenor  of  the  checks 
drawn  and  cut  from  the  book,  have  been 
reiected.      C-'ooper    v.   Moriell,   4    Yates, 
341 ;  Wilson  v.  (Joodin,  Wright,  Kep.  219. 
But  the  time-book  of  a  day-laliorer,  tiiough 
kept  in  a  tabular  form,  is  admissible  ;  the 
entries  being  made  for  the  apparent  pur- 
pose of  cliarging  the  person  for  whom  the 
work  was  done.     Mathes  v.  Hobinsoii,  8 
Met.    21)9.      [In  an   action   by  a   laborer 
against  his  employer,  the  time-book  of  the 
enn)loyer,  kept  in' a  tabular  form,  in  which 
the   days   the    plaintilf  worked    are    set 
down,  is  not  admissible  in  evidence  with 
the  deteiidaiit's  jsum)letor;/  oath,  to  show 
that  the  i)l;iintitr  diTrhotwork  on  certain 
days  ;  it  being  a  book  of  credits  and  not 
of 'charges,  aiul  it  not  being  competent  to 
show  that  the  i)laintiff  did  not  work  on 
certain  days  by  the  defendant's  omission 
to  give  credit' for  work  on   those   days. 
Morse  v.   Potter,  4   Gray,  292.J      If  the 
bo(»k  contains  marks,  or  there  be  other 
evidence  ^bowing   that   the   items    have 
been  transferred  to  a  journal  or  ledger, 
these  books  also  nmst  be  produced.  Prince 
V.  Swett,  2  Mass.  509.     The  entries,  also, 


must  be  made  contemporaneous!}'   with 
the   fact  entered,   as    has    been    already 
stated   in   regard   to  entries   made   by  a 
clerk.     Sii/ira,  §  117,  and  note  (1).     Kn- 
tries  thus  made  are  not  however  received 
in  all  cases  as  satisfactory  proof  of  the 
charges ;    but  only   as   proof   of   things, 
which,  from  their  nature,  are  not  gener- 
ally siLsceptible  of  better  evidence.     Watts 
V.  Howanl,  7  Met.  478.     They  are  satis- 
factory proof  of  goods  sold  and  delivered 
from   a   shop,  and  of  hibor  and  services 
jiersonally  performed.     Case  v.  I'otter,  8 
.Johns,  211  ;  Vosburg  v.  Thayer,  12. Johns. 
201;   Wilmer  v.  Israel,  1   Browne,  257; 
Ducoign    0.    Schreppel,    1    Yates,    347; 
Spence  v.  Saunders,  1  Bay,  119;  Charl- 
ton V.  Lawry,  Martin,  N.  Car.  Kep.  26; 
MitcheU  v.  Clark,  Id.  25;  Easby  i-.  Aiken, 
Cooke,  K.  388  ;  and,  in  some  states,  of 
small  sums  of  money.     Coggswell  '■.  Dol- 
livcr,  2  Mass.  217 ;    Prince  v.   Smith,  4 
Mass.  455  ;  3  Dane's  Abr.  ch.  81,  art.  4, 
§§  1,  2;   Criiven  i\  Shaird,  2  Halst.  345. 
[Meals  furnished  to  an  employer  and  his 
servants,  from  day  to  day,  are  a  proper 
subject  of  book-charge.     Tremain  v.  Ed- 
wifrds,  7   Cush.  414.]      The  amount,  in 
Miissachtistlts  and  Maine,  is  restricted  to 
forty    shillings.      Dunn    v.    Whitney,    1 
Fairf   9;    Burns    v.   Fay,    1-i    Bick.    8; 
Union  Bank  v.  Knapp,  3  Pick.  109.     [Nor 
is  the  rule  chtmged  because  an  auditor,  at 
the   hearing  before   him,   ex.imincd    the 
book,  as    a    voucher   for   a   greater   sum. 
Turner  v.  Twing,  9  Cush.  512. |     While 
in  Xurth   Carolina  it  is  extended  to  any 
article  or  articles,  the   amount  whereof 
shall  not  exceed  the  sum  of  sixty  dollars. 
Stat.   1837,  chap.   15,  §§   1,  5.     [In  New 
./(i\<ii/   they    are    inadmissible    to    prove 
moiiev    ]iaid   or   money   lent.      luslee    v. 
l'rall,'3  Zabr.  457. J     But  they  have  been 
refused  admission  to  prove  the  fact  of  ad- 
vertising in   a  newsfiapcr ;    Jxichards   v. 
Howard,  2  Nott  &  McC.  474 ;  Thomas  v. 
Dyott,  1  Nott  &  McC.  180  :  of  a  charge  of 
dockage  of  a  vessel ;  Wilmer  v.  Israel,  1 
Browne,  257  :  commissions  on  the  sale  of 
a  vessel ;  Winsor  r.  Dilloway,  4  Met.  221 : 
[an   item    in    an    at^count    "  seven    gold 
watches,    §308;"   Bustin   v.   Rogers,    11 
Cush.  340  :  to  whom  creilit  was  originally 
given,  delivery  being  admitted  ;   Keith  v. 
Kibbe,  10  Cush.  30  :  the  consideration  of 
a  promissory  note  ;  Rindge  v.  Breck,  10 
Cush.  43  ;  see  also  Earle  v.  Sawyer,  6 
Cush.  142  :  three  months'  service  in  one 
item ;  Ilenshaw  v.  Davis,  5  Cush.   145 : 
money   lost  by   an    agent's    negligence ; 


CHAP,  v.] 


HEARSAY. 


143 


low,  were  not  in  accordance  with  the  princii)lcs  of  the  common 
law,  yet  it  is  in  conformity  with  those  of  other  systems  of  jurispru- 
dence. In  the  administration  of  the  Roman  law,  the  production 
of  a  merchant's  or  tradesman's  book  of  accounts,  regularly  and 
fairly  kept  in  the  usual  manner,  has  been  deemed  presumptive  evi- 
dence Qsemijjlcna  prohatlo  i)  of  the  justice  of  his  claim ;   and,  in 


Chase  v.  Spencer,  1  Williams,  412 :  arti- 
cles temporarily  borrowed  ;  Scott  ?'.  Brig- 
ham,  lb.  5G1 :  buildiiiR  a  fence  ;  Towle  v. 
Blake,  o7  iNIaine,  2U8  :  an}'  matter  col- 
lateral to  the  issue  of  debt  and  credit 
between  the  parties  ;  Batchekler  v.  San- 
born, 2  Foster,  325 :]  labor  of  servants  ; 
Wright  V.  Sharp,  1  Browne,  84-4  :  goods 
delivered  to  a  third  person  ;  Kerr  v.  Love, 
1  Wash.  172;  Tenbrook  v.  Johnson,  Coxe, 
288  ;  Townlev  v.  Woolley,  Id.  877  : 
[Webster  v.  Clark,  10  Foster,  245  :]  or  to 
the  party,  if  under  a  previous  contract  for 
their  delivery  at  tlitlerent  periods  ;  Loner- 
gan  r.  Whitehead.  10  Watts,  249  :  general 
damages,  or  value  ;  Swing  v.  Sparks,  2 
Halst.  59  ;  Terrill  v.  Beecher,  U  Conn. 
348,  349  ;  settlement  of  accounts  ;  Brest  v. 
Mercereau,  4  Halst.  268  :  money  paid  and 
not  applied  to  the  purpose  directed  ; 
Bradley  v.  Goodyear,  1  Day,  104  :  a  spe- 
cial agreement ;  Britchard  v.  McOwen,  1 
Nott  &  iSIcC.  131,  note  ;  Dunn  v.  Whit- 
ney, 1  Fairf.  9  ;  Green  v.  Bratt,  11  Conn. 
205  :  or  a  delivery  of  goods  under  such 
agreement ;  Nickle  v.  Baldwin,  4  Watts 
&  Serg.  290 :  an  article  omitted  by  mis- 
take in  a  prior  settlement ;  Bunderson  v. 
Shaw,  Kirby,  150  :  the  use  anil  occupation 
of  real  estate,  and  the  like ;  Beach  v. 
Mills,  5  Conn.  493.  i^ee  also  Newton  v. 
Higgins,  2  Verm.  366 ;  Dumi  v.  Whitney, 
1  Fairf.  9.  But  after  the  order  to  dehver 
goods  to  a  third  person  is  proved  by  com- 
petent evidence  uliamh',  the  delivery  itself 
may  be  proved  by  tlie  books  and  supple- 
tory  oath  of  the  plaintiti",  in  any  case 
where  such  delivery  to  the  defendant  in 
person  might  be  so  proved.  Mitchell  v. 
Belknap,  10  Shepl.  475.  The  charges, 
moreover,  must  be  specific  and  particular ; 
a  general  cha'rge  for  i)rofcssioiial  services, 
or  for  work  and  labor  by  a  mechanic, 
without  any  specificaticm  but  that  of  time, 
caimot  be  supported  by  this  kind  of  evi- 
•  deuce.  Lynch  v.  I'etrie,  1  N'ott  &  McC. 
130;  Hughes  v.  Hampton,  2  Const.  Kep. 
476.  Antl  regularly  the  prices  ought  to 
be  specified ;  in  which  case  the  entry  is 
prima.  J'ucit  evidence  of  the  value.  Haga- 
man  v.  Case,  1  South.  370 ;  Uucoign  v. 
Schreppel,  1  Yeates,  337.  But  whatever 
be  the  nature  of  the  subject,  the  transac- 


tion, to  be  susceptible  of  this  kind  of 
proof,  must  have  been  directly  between 
the  original  debtor  and  the  creditor  ;  the 
book  not  being  admissible  to  establish  a 
collateral  fact.  Mifllin  v.  Bingham,  1 
Dall.  276,  per  McKean,  C.  J. ;  Kerr  v. 
Love,  1  Wash.  172;  Deas  v.  Darby,'  1 
Nott  &  McC.  436;  Poulteney  v.  Boss,  1 
l3all.  238.  Though  books,  such  as  have 
been  described,  are  admitted  to  be  given 
in  evidence,  with  the  suppletory  oath  of 
the  party,  yet  his  testimony  is  still  to  be 
■weighed  by  the  jury,  like  that  of  any 
other  witness  in  the  cause,  and  his  reputa- 
tion for  truth  is  equally  ojien  to  be  ques- 
tioned. Kitchen  v.  Tvson,  2  Murph.  314  ; 
Elder  v.  Warfield,  7  'liar.  &  Johns.  391. 
In  some  states,  the  books  thus  admitted 
are  only  those  of  shopkeepers,  mechanics, 
and  tradesmen ;.  those  of  other  persons, 
such  as  planters,  scriveners,  schoolmasters, 
&c.,  being  rejected.  Geter  v.  Martin,  2 
Bav,  173 ;  Pelzer  v.  Cranston,  2  McC. 
328;  Boyd  v.  Ladson,  4  McC.  76.  The 
subject  of  the  admission  of  the  party's  own 
entries,  with  his  suppletory  oath,  in  the 
several  American  states,  is  very  elabor- 
ately and  fully  treated  in  Mr.  Wallace^s 
note  to  the  American  edition  of  Smith's 
Leading  Cases,  vol.  1,  p.  142.  [Wliere  a 
party's  books  are  admitted,  their  credit 
cannot  be  impeached  by  i>roof  of  the  bad 
moral  character  of  the  party.  Tomlinsoii 
V.  Borst,  30  Barb.  42.J  [  *  It  seems  to  be  , 
settled  that  if  the  party  rely  upon  the 
credits  in  his  adversary's  book,  he  must 
take  such  admission  in  connection  with 
counter  debits.  Biglow  v.  Sanders,  2^ 
Barb.  N.  Y.  147.  But  according  to  the 
English  practice  he  is  not  precluded  from 
introducing  evidence  to  impeach  the 
items  ujion  the  debtor  side  of  the  account, 
while  he  claims  the  benefit  of  those  upon 
the  credit  side.  Rose  v.  Savory,  2  Bing. 
N.  c.  145.  See  also  Moorehouse  v.  New- 
ton, 3  De  G.  &  Sm.  307.] 

1  This  degree  of  proof  is  thus  defined 
by  Mascardus :  "  Non  est  ignorandum, 
probationem  semiplenam  eam  esse,  per 
quam  rci  gestae. /(V/m  ali<iua  fit  judici ;  non 
tanien  tanta  ut  "jure  deheat  in  pronuncian- 
da  sententia  eam  sequi."  De  Brob.  vol.  1, 
Qua-st.  11,  n.  1,  4. 


144  LAW    OF    EVIDENCE.  [I'AUT   II. 

such  cases,  the  supplctoiy  oath  of  the  party  (^juramentwn  mpple- 
tivuiii)  was  admitted  to  make  up  the  plena  prohat'io  uecessary  to  a 
decree  iu  his  favor.^  By  the  law  of  France^  too,  the  books  of  mer- 
chants and  tradesmen,  regularly  kept  and  written  from  day  to  day, 
without  any  blank,  when  the  tradesman  has  the  reputation  of 
probity,  constitute  a  semi-proof,  and  with  his  suppletory  oath  are 
received  as  full  proof  to  establish  his  demand.^  The  same  doctrine 
is  familiar  in  the  law  of  Scotland,  by  which  the  books  of  merchants 
and  others,  kept  with  a  certain  reasonable  degree  of  regularity, 
satisfactory  to  the  court,  may  be  received  in  evidence,  the  party 
being  allowed  to  give  his  own  oath  "  in  supplement  "  of  such  imper- 
fect proof.  It  seems,  however,  that  a  course  of  dealing,  or  other 
"  pregnant  circumstances,"  must  in  general  ))e  first  shown  by  evi- 
dence aliunde,  before  tlie  proof  can  be  regarded  as  amounting  to 
the  degree  of  semiplena  probatio,  to  be  rendered  complete  by  the 
oath  of  the  party .^ 

§  120.  Returning  now  to  the  admission  of  entries  made  by  clerks 
and  third  persons,  it  may  be  remarked  that  in  most,  if  not  all  the 
reported  cases,  the  clerk  or  person  wlio  made  the  entries  was  dead; 
and  the  entries  were  received  upon  proof  of  liis  handwriting.  But 
it  is  conceived  that  the  fact  of  his  death  is  not  material  to  the 
admissibility  of  this  kind  of  evidence.     There  are  two  classes  of 

1  "  Juramcntum(suppletivuni)tlefcrtur  ciorum  onlo  et  usus  cvcrtitur.  Neqni 
•ubicunque  UftDi-  habct  pro  80 —  aliquas  cMiiin  oiiiiios  pra'senti  ])Ofiinia  iiierces  sibi 
conjcctui-as,  per  quas  jiulex  imliicatur  ad  coinparant,  iieque  cujusqiic  rei  vemlitioni 
sus|)ifioiuMii  vel  ad  opinaiiduin  \n-o  parte  testes  adhiberi,  qui  pretia  niercium  nove- 
actoris."  Mascardns,  I)e  I'rob.  vol.  3,  rint,  aut  cxpcdit,  atit  congruum  est.  Ko 
Concl.  1230,  n.  17.  Tlie  civilians,  how-  iniquuni  videbitur  illiid  statutum,  quo  do- 
ever  tliey  may  differ  as  to  the  degree  of  nic^ticis  talibus  instruinentis  ailditiir  tides, 
credit  to  be  -i-iveii  to  books  of  account,  modo  aliquibus  adininiculis  juventur." 
concur  in  oi)iiii()n  that  tiiey  are  entitled  to  See  also  Ilertius.'De  Collisione  Leguni, 
consideration  at  the  discretion  of  tlie  §  4,  n.  68;  Strykius,  toin.  7,  l)e  Semi- 
judge.  Tliev  furnisli,  at  least,  the  conjcr-  plena  Probat.  ])i,sp.  1,  cap.  4,  §  5  ;  Meno- 
tHra-  mentioned  by  Mascardus  ;  and  their  chins,  Dc  Presump.  lil).  2,  Presump.  57,  n. 
admission  in  evidence,  with  the  supple-  20,  and  lib.  3,  Presumiv  03,  n.  12. 
torvoath  of  the  partv,isthus  defended  by  -  1  Pothier  on  Obi.,  Part  iv.  cli.  1,  art. 
Paid  Voet,  l)e  Statntis,  §  "),  cap.  2,  n.  'J.  2,  §  4.  By  the  Code  Najioleon,  mercliant's 
"An  ut  credatur  lil)ris  rationern,  sen  reg-  books  are  required  to  be  kefit  in  a  i>articu- 
^  istris  uti  hxiiiiintur,  mcrcatoruni  et  artiti-  lar  manner  therein  pre.-;cril)ed,  and  none 
eum,  licet  probaiionibus  testium  non  ju-  others  are  admitted  in  evidence.  Code  de 
ventur?  Kespondeo,  quamvis  exem])lo  Commerce,  Liv.  1,  tit.  2.  art^  8-12. 
pernitiosiim  esse  videatur,  quemque  sibi  ^  Tait  on  Evidence,  p.  273-277.  This' 
privata  testalione,  sive  adnotatione  fa-  degree  of  proof  is  there  defined  as  "  not 
cere  debitorein.  (^uia  tamcn  luce  est  mer-  merely  a  suspicion,  —  Init  such  evidence 
catorum  ciira  et  opera,  ut  debiti  et  credit!  as  produces  a  reasonable  belief,  though  not 
ratioiies  diligeiiter  conficiaiit.  Ktiain  in  comiilete  evidence."  See  also  Glassford 
eorum  foro  et  causis,  ex  a>qiio  et  bono  est  on  Evid.  p.  5-JO  ;  IJell's  Digest  of  Laws  of 
jiulicandum.  Insuper  non  admisso  aliquo  Scotland,  pp.  378,  81)8. 
litium  accelerandarum  reniedio,  commer- 


CHAP,  v.]  HEARSAY.  145 

admissible  entries,  between  wliicli  there  is  a  clear  distinction,  in 
regard  to  the  principle  on  which  they  arc  received  in  evidence. 
The  one  class  consists  of  entries  made  against  the  interest  of  the 
party  making  them ;  and  these  derive  their  admissil)ility  from  this 
circumstance  alone.  It  is,  therefore,  not  material  when  they  were 
made.  The  testimony  of  the  party  who  made  them  would  be  the 
best  evidence  of  the  fact ;  but,  if  he  is  dead,  the  entry  of  the  facf 
made  by  him  in  the  ordinary  course  of  his  business,  and  against 
his  interest,  is  received  as  secondary  evidence  in  a  controversy 
between  third  persons.^  The  other  class  of  entries  consists  of 
those  which  constitute  parts  of  a  chain  or  combination  of  transac- 
tions between  the  parties,  the  proof  of  one  raising  a  presumption 
that  another  has  taken  i)lace.  Here,  the  value  of  the  entry,  as 
evidence,  lies  in  this,  that  it  was  contemporaneous  with  the  principal 
fact  done,  forming  a  link  in  the  chain  of  events,  and  being  part  of 
the  res  gestce.  It  is  not  merely  the  declaration  of  the  party,  l)ut  it 
is  a  verbal  contemporaneous  act,  belonging,  not  necessarily,  in- 
deed, but  ordinarily  and  naturally  to  the  princi})al  thing.  It  is  on 
this  "ground,  that  this  latter  class  of  entries  is  admitted ;  and 
therefore  it  can  make  no  difference,  as  to  their  admissibility, 
whether  the  party  who  made  them  be  living  or  dead,  nor  whetlier 
he  was,  or  was  not,  interested  in  making  them  ;  his  interest  going 
only  to  affect  the  credibility  or  weight  of  the  evidence  when 
received.2 

§  121.  The  evidence  of  indcbtment,  afforded  by  the  indorsement 
of  the  payment  of  .interest,  or  ^partial  payment  of  the  principal, 
on  the  back  of  a  bond  or  other  security,  seems  to  fall  witliin  the 
principle  Ave  are  now  considering,  more  naturally  than  any  other  ; 
though  it  is  generally  classed  with  entries  made  against  the 
interest_of  the  party.  The  main  fact  to  be  proved  inTlie  cases, 
where  this  evidence  has  been  admitted,  was  the  continued  exis- 

1  "Warren  v.   Greenville,  2   Str.   1129;  Einn.  IM  ;  Sherman  r.  Crosby,  11  Johns. 

MidiUcton  v.  Melton,  10  B.   &   C.    317;  70;  Holhulay  c.  Littleimjie,  2'Munf.  31() ; 

Tliomi)son   v.   Stevens,  2  Nott   &   McC.  I'rather  v.  Johnston,  3  H.  &  J.  487 ;  Sher- 

493 ;  Chase  v.  Smith,  5  Verm.  556 ;  Spi-  man  r.  Akins.  4  Pick.  28.3  ;  Carroll  v.  'I'y- 

ers  r.  Morris,  9  Bing.  687;  Alston  v.  Taj-  ler,  2  II.  &   G.  54  ;  James  v.  Wharton,  3 

lor,  1  Ilayw.  381,  395.  '  ]\[eLean,  492.     In  several  cases,  however, 

-  This  distinction  was  taken  and  clear-  letters  and  receipts  of  tlnrd  persons  livinji, 

ly  expounded  hy  Mr.  Justice   Parke   in  and  within   the   reach   of   process,   have 

Doe  d.  Patteshall  r.  Tin-tord,  3  B.  &  Ad.  been  rejected.     Lonjjcnecker  v.  Hyde,  6 

890 ;  cited  and  approved  in  Poole  v.  Dicas,  Binu.  1  ;  Sjiar^o  v.  Brown,  9  B.  &  C.  935  ; 

1  Bing.  N.  0.  6-'>4;   [Stapvlton  v.  Cloun;h,  AVariier  c.  Price,  3  Wend.  397;  Cullmsh 

22  Eng.  Law  .<:  Kq.  H.  275.|     See  also".s»-  r.  (iillvrt,  4  S.   &  K.  551;   [Heynolds  r. 

■pra,  %%    115,    116;    Cluggage  v.  Swan,  4  IManning,  15  Met.  510.J 
VOL.  I.                                                         13 


146  LAW   OF   EVIDENCE.  [PART   H. 

tencc  of  the  debt,  notwithstanding  the  hipse  of  time  since  its 
creation  was  such  as  either  to  raise  tlie  presumption  of  payment, 
or  to  bring  the  case  within  the  operation  of  the  statute  of  Umita- 
tioiis.  Tliis  fact  was  sought  to  be  proved  by  the  acknowledgment 
of  the  de!)t  by  the  dcljtor  liimsclf ;  and  this  acknowledgment  was 
l)r()vcd,  by  his  having  actually  paid  part  of  the  money  due.  It  is 
the  usual,  ordinary,  and  well-known  course  of  business,  that  par- 
tial payments  are  forthwith  indorsed  on  the  back  of  tlie  security, 
the  indorsement  thus  becoming  part  of  the  res  gestce.  Wherever, 
therefore,  an  indorsement  is  siiown  to  have  been  made  at  the  time 
it  bears  date  (which  will  be  inferred  from  its  face,  in  the  absence 
of  opposing  circumstances),^  the  presumption  naturally  arising  is, 
that  the  money  mentioned  in  it  was  paid  at  that  time.  If  the 
date  is  at  a  period  after  the  demand  became  stale,  or  affected  by 
the  statute  of  limitations,  the  interest  of  the  creditor  to  fabricate 
it  would  be  so  strong,  as  to  countervail  the  presumption  of  pay- 
ment, and  require  the  aid  of  some  other  proof;  and  the  case 
would  be  the  same,  if  the  indorsement  bore  a  date  within  that 
peri(jd,  the  instrument  itself  being  otherwise  subject  to  the  bar 
arising  from  lapse  of  time.^  Hence  the  inquiry,  which  is  usually 
made  in  such  cases,  namely,  whether  the  indorsement,  when 
made,  was  against  the  interest  of  the  party  making  it,  that  is,  of 
the  creditor ;  which,  in  other  language^  is  only  inquiring  whether 
it  was  made  while  his  remedy  was  not  yet  impaired  by  lapse  of 
time.  The  time  when  the  indorsement  was  made  is  a  fact  to  be 
settled  by  the  jury ;  and  to  this  end  the  writing  must  be  laid 
before  them.  If  there  is  no  evidence  to  the  contrary,  the 
presumption  is,  that  the  indorsement  was  made  at  the  time  it 
purports  to  bear  date ;  and  the  burden  of  proving  the  date  to  be 
false  lies  on  the  other  party .^  If  the  indorsement  does  not  pur- 
])ort  to  be  made  contemporaneously  with  the  receipt  of  the  mOney, 
it  is  inadmissible,  as  part  of  the  res  gestce. 

§  122.  This  doctrine  has  been  very  much  considered  in  the 
discussions  which  have  repeatedly  been  had  upon  the  case  of 

1  Smitli  V.  Battens,  1  M.  &  I?ob.  341.  boom  v.  Billinuton,  17  Johns.  182;  Gibson 

See  also  Nichols  v.  Webb,  S  Wheat.  o2G ;  v.  Peebles,  2  McCord,  418. 

12  S.  &  U.  4V»,  87  ;  IG  S.  &  11.  8'.),  Ul.  "  Per  Taunton,  J.,  in  Smiths.  Battens, 

■■^  Turner  )).  Crisp,  2  Stra.  827 ;  Rose  v.  1  M.  &  Uob.  343.  See  also  Hunt  v.  Mas- 
Brvant,  2  Campb.  321 ;  Glynn  v.  The  sey,  5  B.  &  Adolph.  'J02  ;  Baker  v.  Mil- 
Bank  of  En-jland,  2  Ves.  38,  43.  See  al-  burn,  2  Mees.  &  W.  853  ;  Sinelair  v.  Bat;- 
80  Whitney  i;.  Bigelow,  4  rick.  110;  Rose-  galcy,  4  Mees.   &  W.   312;  Anderson  v. 

Weston,  G  Bing.  n.  c.  2'JG. 


CHAP,  v.]  HEARSAY.  147 

Searle  v.  Barrington}  In  that  case,  the  bond  was  given  in  1697, 
and  was  not  sued  until  after  the  death  of  the  obligee,  upon  whose 
estate  administration  was  granted  in  1723.  The  ()1»Hgor  died  in 
1710 ;  the  obligee  probably  survived  him,  but  it  did  not  appear 
how  long.  To  repel  the  presumption  of  payment,  arising  from 
lapse  of  time,  the  plahitiff  offered  in  evidence  two  indorsements, 
made  upon  the  bond  by  the  obligee  himself,  bearing  date  in  1699, 
and  in  1707,  and  purporting  that  the  interest  due  at  those  re- 
spective dates  had  been  then  paid  by  the  obligor.  And  it  appears 
that  other  evidence  was  also  offered,  showing  the  time  when  the 
indorsements'were  actually  made.^  The  indorsements,  thus  proved 
to  have  been  made  at  the  times  when  they  purported  to  have  been 
made,  were,  upon  solemn  argument,  held  admissible  evidence,  both 
by  the  judges  in  the  Exchequer  Chamber  and  by  the  House  of 
Lords.  The  grounds  of  these  decisions  are  not  stated  in  any  of 
the  reports ;  but  it  may  be  presumed  that  the  reasoning  on  the  \ 
side  of  the  prevailing  party  was  approved,  namely,  that  the  in-  , 
dorsement  being  made  at  the  time  it  purported  to  bear  date,  and 
being  according  to  the  usual  and  ordinary  course  of  business  in 
such  cases,  and  which  it  was  not  for  the  interest  of  the  obligee  at 
that  time  to  make,  was  entitled  to  be  considered  by  the  jury ;  and 
that  from  it,  in  the  absence  of  opposing  proof,  the  fact  of  actual 
payment  of  the  interest  might  be  inferred.  This  doctrine  has 
been  recognized  and  confirmed  by  subsequent  decisions.^ 

1  There   were  two  •  successive  actions  as  the  result  of  his  own  research.     See  1 

on  the  same  bond  between  these  parties.  Cronip.  &  Mees.  421.     So  it  was  under- 

The  first  is  reported  in  2  Stra.  826, 8  Mod.  stood  to  be,  and  so  stated,  by  Lord  Hard- 

278,  and  2  Ld.    Raym.  1370 ;    and   was  wicke,  in  2  Ves.  43.     It  may  liave  consti- 

tried  before  Pratt,  C.  J.,  who  refused  to  tuted  the  "  otlier  circumstantial  evidence," 

admit  tlie  indorsement,  and  nonsuited  the  mentioned  in  ISIr.  Brown's  report,  3  Bro. 

plaintiff";  but  on  a  motion  to  set  the  nou-  P.  C.  594;  which  he  literally  transcribed 

suit  aside,  the  three  other  judges  were  of  from   the  case,  as   drawn   up  by  Messrs. 

opinion,  that  the  evidence  ouijht  to  have  Lutwyche  and  Fazakerley,  of  counsel  for 

been  left  to  the  jury,  the  indorsement  in  the  original  plaintiff,  for  argument  in  the 

such  cases  being  according  to  the  usual  House  of  Lords.     See  a  folio  volume  of 

course  of  business,  and  perhaps   in  this  original  printed  briefs,  marked  "  Cases  in 

case  made  with  the  privity  of  the  obligor;  Parliament,  1728  to  1731,"  p.  529,  in  the 

but  on  another  ground  the  motion  was  de-  Law   Library  of  Harvard  IJniversity,  in 

nied.      Afterwards    another    action    was  which  this  case  is  stated  more   at  large 

brought,    which   was    tried   before   Lord  than  in  any  book  of  Reports.     By  Stat.  9 

Raymond,  C.  J.,  who   admitted  the  cvi-  Geo.  IV.  c.   14,  it  is  enacted,  that  no  in- 

dence  of  the  indorsement;   but  to  which  dorsement  of  jiartial  payment,  made  by  or 

the  defendant  filed   a  bill  of  exceptions,  on  behalf  of  tlie  creditor,  shall  be  deemed 

This  judgment  was  affirmed  on  error  in  sufficient  proof  to  take  the  case  out  of  the 

the  Exchequer  Chamber,  and  again  in  the  statute  of  limitations.     The  same   enact- 

House  of  Lords.     See  2  Stra.  827 ;  3  Bro.  nient  is  found  in  the  laws  of  some  of  the 

P.  C.  593.     The  first  case  is  most  fully  re-  United  States. 
ported  in  8  Mod.  278.  ^  Bosworth    v.   Cotchett,  Dom.  Proc. 

2  This  fact  was  stated  by  Bayley,  B.,  May  6,  1824 ;  Phil.  &  Am.  on  Evid.  348 ; 


148  LAW   OF   EVIDENCE.  [PART  II. 

§  123.  Thus,  Ave  have  seen  that  there  avefonr  classes  of  declara- 
tions, which,  though  usually  treated  under  the  head  of  hearsay, 
are  in  truth  original  evidence ;  the  first  class  consisting  of  cases 
where  the  fact,  that  the  declaration  was  made,  and  not  its  truth 
or  falsity,  is  the  point  in  question  ;  the  second,  including  expressions 
of  bodily  or  mental  feelings,  where  the  existence  or  nature  of  such 
feelings  is  the  subject  of  imiuii y  ;  the  third,  consisting  of  cases  of 
pedigree,  and  including  the  declarations  of  those  nearly  related  to 
the  party  whose  pedigree  is  in  question  ;  and  the  fonrth,  embracing 
all  other  cases  where  the  declaration  offered  in  evidence  may  be 
regarded  as  part  of  the  res  gestce.  All  these  classes  are  involved 
in  the  principle  of  tlie  last ;  and  have  been  se])arately  treated, 
merely  for  the  sake  of  greater  distinctness. 

§  124.  Subject  to  these  qualifications  and  seeming  exceptions, 
the  general  ride  of  law  rejects  all  hearsay  reports  of  transactions, 
whether  verbal  or  written,  given  by  persons  not  produced  as  wit- 
nesses.^ The  principle  of  this  rule  is,  that  such  evidence  requires 
credit  to  be  given  to  a  statement,  made  by  a  person  who  is  not 
subjected  to  the  ordinary  tests,  enjoined  by  the  law,  for  ascertain- 
ing the  correctness  and  completeness  of  his  testimony ;  namely, 
that  oral  festimony  shoidd  be  delivered  in  the  presence  of  the 
court  or  a  magistrate,  under  the  moral  and  legal  sanctions  of  an 
oath,  and  where  the  moral  and  intellectual  character,  the  motives 
and  deportment  of  the  witness  can  be  examined,  and  his  capacity 
and  opjiortunities  for  observation,  and  his  memory,  can  be  tested 
by  a  cross-examination.  •  Such  evidence,  moreover,  as  to  oral  dec- 
larations, is  very  liable  to  l)e  fallacious,  and  its  value  is,  therefore, 
greatly  lessened  by  the  })robability  that  the  declaration  was  imper- 
fectly heard,  or  was  misunderstood,  or  is  not  accurately  remem- 
bered, or  has  been  perverted.  It  is  also  to  be  observed,  that  the 
persons  conununicating  such  evidence  are  not  exposed  to  the 
danger  of  a  prosecution  for  perjury,  in  which  something  more 
than  the  testimony  of  one  witness  is  necessary,  in  order  to  a  con- 

Gleadow  v.  Atkin,  1  Cromp.  &  Mees.  I  at  the  time  the  .admittcfl  payment  was 
410;  Anderson  v.  Woston,  6  Bing.  n.  c.  jmade.  Hayes  v.  Morse,  8  Verm.  R.  31fi.| 
2JI5  ;  2  Smith's  Leadinsj  Cases,  197;  Ad-  ^  "  If,"  says  Mr.  Justice   BuUer,  "  tiie 

dams  V.  Seitzinger,  1  Watts  &  Serg.  2-13.  first  speccli  were  witliout  oath,  another 
(  *  But  the  aihnission  of  a  payment  at  the  oath,  thnt  tliere  was  sucli  spcecli,  makes  it 
time  a  note  fell  lUio.  altliougli  signed  by  no  more  than  a  bare  si)eaking,  and  so  of 
both  parlies  and  indorsed  upon  the  note  at  no  value  in  a  court  of  justice."  Bull.  N. 
a  period  within  the  statute  of  limitations  P.  2'.i-l ;  [Lund  i'.  Tyngsborough,  9  Cush. 
will  not  have  the  eHect  to  remove  the  bar,  36,  40.] 
the  eH(2ct  being  the  same  only  as  if  made 


CHAP,  v.]  HEARSAY.  149 

viction ;  for  where  the  declaration  or  statement  is  sworn  to  have 
been  made  when  no  third  person  was  present,  or  by  a  person  who 
is  since  dead,  it  is  hardly  possible  to  punish  the  witness,  even  if 
his  testimony  is  an  entire  fabrication.^  To  these  reasons  may  be 
added  considerations  of  public  interest  and  convenience  for  reject- 
ing hearsay  evidence.  The  greatly  increased  expense,  and  the 
vexation  which  the  adverse  party  must  incur,  in  order  to  rebut  or 
explain  it,  the  vast  consumption  of  public  time  thereby  occasioned, 
the  multiplication  of  collateral  issues,  for  decision  by  the  jury, 
and  the  danger  of  losing  sight  of  the  main  question,  and  of  the 
justice  of  the  case,  if  this  sort  of  proof  were  admitted,  are  consid- 
erations of  too  grave  a  character  to  be  overlooked  by  the  court  or 
the  legislature,  in  determining  the  question  of  changing  the  rule.^ 

§  125.  The  rule  applies,  though  the  declaration  offered  in  evi- 
dence was  made  upon  oath,  and  in  the  course  of  a  judicial  proceed- 
ing, if  the  litigating  parties  are  not  the  same.  Thus,  the  deposition 
of  a  pauper,  as  to  the  place  of  his  settlement,  taken  ex  imrte  before 
a  magistrate,  was  rejected,  though  the  pauper  himself  had  since 
absconded,  and  was  not  to  be  found.^  The  rule  also  applies,  not- 
withstanding no  better  evidence  is  to  be  found,  and  though  it  is 
certain  that,  if  the  declaration  offered  is  rejected,  no  other  evi- 
dence can  possibly  be  obtained ;  as,  for  example,  if  it  purports  to 
be  the  declaration  of  the  only  eye-witness  of  the  transaction,  and 
he  is  since  dead.* 

§  126.  An  exception  to  this  rule  has  been  contended  for  in  the 
admission  of  the  declarations  of  a  deceased  attesting,  witness  to  a 
deed  or  will,  in  disparagement  of  the  evidence  afforded  by  his 


1  Phil.  &Am.  onEvid.  217;  IPhil.  Evid.  is  otherwise  ;  evidence  on  tlie  relation  of 
205,  206.  See,  as  to  the  liability  of  words  others  being  admitted,  where  the  relator 
to  misconstruction,  the  remarks  of  Mr.  is  since  dead,  and  would,  if  living,  have 
Justice  Foster,  in  his  Discourse  on  High  been  a  competent  witness.  And  if  the  re- 
Treason,  ch.  1,  §  7.  The  rule  excluding  lation  has  been  handed  down  to  the  wit- 
hearsay  is  not  of  great  antiquity.  One  of  ness  at  second-hand,  and  through  several 
the  earliest  cases  in  which  it  was  adminis-  successive  relators,  each  only  stating  what 
tered,  was  that  of  Sampson  v.  Yardley  he  received  from  an  intermediate  relator,  it 
and  Tothill,  2  Keb.  223,  pi.  74,  19  Car.  2.  is  still  admissible,  if  the  original  and  in- 

2  Mima  Queen  v.  Hepburn,  7  Cranch,  termediate  relators  are  all  dead,  and  would 
290,  296,  per  Marshall,  C.  J.  have  been  competent  witnesses  if  living. 

3  Rex  V.  Nimeham  Courtney,  1  East,  Tait  on  Evid.  pp.  430,  431.  But  the  rea- 
873 ;  Rex  v.  Ferry  Frystone,  2  East,  54 ;  son  for  receiving  hearsay  evidence,  in 
Rex  V.  Eriswell,  3  T.  R.  707-725,  per  cases  where,  as  is  generally  the  case  in 
Lord  Kenyon,  C.  J.,  and  Grose,  J.,  wliose  Scotland,  the  .judges  determine  upon  the 
opinions  are  approved  and  adopted  in  Mima  facts  in  dispute,  as  well  as  upon  tlie  law. 
Queen  v.  Hepburn,  7  Cranch,  296.  is  stated   and  vindicated    bv    Sir    James 

*  Phil.  &  Am.  on  Evid.  220,  221 ;  1  Phil.  Mansfield,  in  the  Berkley  Peerage  case,  4 

Evid.    209,   210.     In    Scotland  the    rule  Campb.  415. 

13* 


150  LAW    OF    EVIDENCE.  [PART   II. 

si^-naturc.      This  exception  has  been  asserted,  on  two  grounds ; 
first,  that  as  the  party,  ollering  the  deed,  used  the  declaration  of 
the  witness,  evidenced  hy  his  signature,  to  prove  the  execution, 
the  other  party  might  well  be  permitted  to  use  any  other  declara- 
tion of  the  same  witness,  to  disprove  it;  —  and  secondly,  that  such 
declaration  was  in  the  nature  of  a  substitute  for  the  loss  of  the 
benefit  of  a  cross-examination  of  the  attesting  witness ;  by  which, 
either  the  fact  confessed  would  have  been  proved,  or  the  witness 
might  have  been  contradicted,  and  his  credit  impeached.     Both 
these  grounds  were  fully  considered  in  a  case  in  the  exchequer, 
and  were  overruled  by  the  court ;  the  first,  because  the  evidence 
of  the  handwriting,  in  the  attestation,  is  not  used  as  a  declaration 
by  the  witness,  but  is  offered  merely  to  show  the  fact  that  he  put 
his  name  there,  in  the  manner  in  which  attestations  are  usually 
placed  to  genuine  signatures ;  and  the  second,  chiefly  because  of 
the  mischiefs  which  would  ensue,  if  the  general  rule  excluding 
hearsay  were  thus  broken  in  upon.     For  the  security  of  solemn 
instruments  would  thereby  become  much  impaired,  and  the  rights 
of  parties  under  them  would  be  liable  to  be  affected  at  remote 
periods,  by  loose  declarations  of  the .  attesting  witnesses,  which 
could  neither  be  explained  nor  contradicted  by  the  testimony  of 
the  witnesses  themselves.     In  admitting  such  declarations,  too, 
there  would  be  no  reciprocity ;  for  though  the  party  impeaching 
the  instrument  would  thereby  have  an  equivalent  for  the  loss  of 
his  power  of  cross-examination  of  the  living  witness,  the  other 
I  party  would  have  none  for  the  loss  of  his  power  of  rc-exammar 
tion.i 

1  Stobart  v.  Dryden,  1  Mees.  &  W.  615. 


CHAP.  VI.]  MATTERS   OF   GENERAL   INTEREST.  151 


CHAPTER  VI. 

OF   MATTERS   OF   PUBLIC   AND    GENERAL   INTEREST. 

[  *  §  127.  Classification  of  the  exceptional  cases. 

128.  Distinction  between  public  and  general  interest. 

129.  Competent  knowledge  seems  indispensable  in  witness. 

130.  Reputation  restricted  to  ancient  matters,  and  as  to  persons  deceased. 

131.  Not  admitted  after  controversy  arises.     Lis  mota  defined. 

132.  The  controversy  must  be  upon  the  same  point. 

133.  It  will  make  no  difference  that  the  controversy  is  unknown. 

134.  This  will  not  exclude  solemn  acts  declaring  legitimacy. 

135.  Witness  need  not  state  author.    Declarations  receivable,  if  person  not  then 

interested. 

136.  His  being  in  similar  relation  no  objection. 

137.  The  rule  does  not  extend  to  any  but  public  interests. 

138.  Subject  further  illustrated. 

139.  Documentary  evidence  inter  alios  is  also  admissible  under  the  limitations 

already  stated. 

140.  Reputation  is  also  admitted  against  claim  of  public  right.] 

§  127.  Having  thus  illustrated  the  nature  of  hearsay  evidence, 
and  shown  the  reasons  on  which  it  is  generally  excluded,  we  are 
now  to  consider  the  cases  in  which  this  rule  has  been  relaxed,  and 
hearsay  admitted.  The  exceptions,  thus  allowed,  will  be  found 
to  embrace  most  of  the  points  of  "inconvenience,  resulting  from 
a  stern  and  universal  application  of  the  rule,  and  to  remove  the 
principal  objections  which  have  been  urged  against  it.  These 
exceptions  may  be  conveniently  divided  into  four  classes :  — 
fii'st,  those  relating  to  matters  of  public  and  general  interest ;  — 
secondly,  those  relating  to  ancient  possessions  ;  —  thirdly,  declara- 
tions against  interest; — fourthly,  dying  declarations,  and  some 
others  of  a  miscellaneous  nature ;  and  in  this  order  it  is  proposed 
to  consider  them.  It  is,  however,  to  be  observed,  that  these 
exceptions  are  allowed  only  on  the  ground  of  the  absence  of  better 
evidence,  and  from  the  nature  and  necessity  of  the  case. 

§  128.  And  first,  as  to  matters  of  public  and  general  interest. 
The  terms,  public  and  general,  are  sometimes  used  as  synony- 
mous, meaning  merely  that  which  concerns  a  multitude  of  per- 


152  LAW   OF   EVIDENCE.  [PART  U. 

I  sons. ^  But  ill  regard  to  the  admissibility  of  hearsay  testimony, 
a  distinction  has  been  taken  between  them ;  the  term,  public, 
being  strictly  applied  to  that  which  concerns  all  the  citizens,  and 
every  member  of  the  State  ;  and  the  term,  general,  being  referred 
to  a  lesser,  though  still  a  large  portion  of  the  community.  In 
matters  of  public  interest,  all  persons  must  be  presumed  con- 
versant, on  the  principle,  tliat  individuals  arc  presumed  to  be 
conversant  in  their  own  affairs ;  and,  as  common  rights  are 
naturally  talked  of  in  the  community,  what  is  thus  dropped  in 
conversation  may  be  presumed  to  be  truc.^  It  is  the  prevailing 
current  of  assertion  that  is  resorted  to  as  evidence,  for  it  is  to 
this  that  e^■ery  member  of  the  community  is  supposed  to  be  privy, 
and  to  contribute  his  share.  Evidence  of  common  reputation  is, 
therefore,  received  in  regard  to  public  facts  (a  claim  of  highway, 
or  a  right  of  ferry,  for  example),  on  ground  somewhat  similar  to 
that  on  which  public  documents,  not  judicial,  are  admitted, 
namely,  the  interest  which  all  have  in  their  truth,  and  the  con- 
sequent probability  that  they  are  true.^  In  these  matters,  in 
which  all  are  concerned,  reputation  from  any  one  appears  to  be 
receivable ;  but  of  course  it  is  almost  worthless,  unless  it  comes 
from  persons  who  are  shown  to  have  some  means  of  knowledge, 
such  as,  in  the  case  of  a  highway,  by  living  in  the  neighborhood ; 
but  the  want  of  such  proof  of  their  connection  with  the  subject 
in  question  affects  tlK3  value  only,  and  not  the  admissibility  of  the 
evidence.  On  the  contrary,  where  the  ftict  in  controversy  is  one 
in  which  all  the  members  of  the  community  have  not  an  interest, 
but  those  only  who  live  in  a  particidar  district,  or  adventure  in 
a  particular  enterprise,  or  the  like,  hearsay  from  persons  wholly 
unconnected  with  tlic  place  or  business  would  not  only  be  of  no 
value,  but  altogether  inadmissible.^  ^ 

1  Weeks  V.  Sparke,  1  M.  &  S.  690,  per  Eosc.  929,  per  Parke,  B.     By  the  Roman 

Bayley,  J.  Law,  reputation  or  common  fame  seems 

■•*  Morewood  v.  Wood,  14  East,  329,  n.,  to  liave  been  admissible  in  evidence,  in  all 

per  Ld.  Kenyon ;  Weeks  v.  Sparke,  1  M.  cases  ;    but  it  was  not  f;enerally  deemed 

&  S.  68G,    per   Ld.  EUenborough ;    The  sufficient  proof,  and,  in  some   cases,  not 

lierkley  J'eerage  case,  4  Campb.  416,  per  even  semijdena    probatio,   unless    cori'obo- 

Manstield,  C.  J.  rated  ;     nisi    aliis    adminicuUs     odjnvetur. 

»  1  Stark.  Evid.  195;  Price  v.  Currell,  6  Mascardus,  De  Prob.  vol.  1,  Concl."  171,  n. 

M.  &  W.  2:U.     And  see  ISIoyes  v.  White,  1 ;   Concl.  188,  n.  2  ;   Concl.  547,  n.  149. 

19  Conn.  250.  It  was  held  sufficient  plena  probatio,  wher- 

■*  Crease  v.  Barrett,  1  Crorap.  Mees.  &  ever,  from  the  nature  of  the  case,  better 

*  [Persons  living  out  of  sucli  district  are    not  therefore  be  aflTccted  by  proof  of  it. 
not  presumed  to  know  such  fact,  and  can-     Dunbar  v.  ]Mulry,  8  Gray,  163.J 


CHAP.  VI.]  MATTERS   OF   GENERAL   INTEREST.  153 

§  129.  Thus,  in  an  action  of  trespass  quare  clausum  frer/it, 
where  the  defendant  pleaded  in  bar  a  prescriptive  right  of  common 
in  the  locus  in  quo,  and  the  plaintiff  replied,  prescribing  the  right 
of  his  messuage  to  us^e  the  same  ground  for  tillage  with  corn, 
until  the  harvest  was  ended,  traversing  the  defendant's  prescrip- 
tion :  it  appearing  that  many  persons  beside  the  defendant  had 
a  right  of  common  there,  evidence  of  reputation,  as  to  the  plain- 
tiff's right,  was  held  admissible,  provided  it  were  derived  from 
persons  conversant  with  the  neighborhood.^  But  where  the  ques- 
tion was,  whether  the  citj  of  Chester  anciently  formed  part  of 
the  county  Palatine,  an  ancient  document,  purporting  to  be  a 
decree  of  certain  law  officers  and  dignitaries  of  the  crown,  not 
'  having  authority  as  a  court,  was  held  inadmissible  evidence  on 
the  ground  of  reputation,  they  having,  from  their  situations,  no 
peculiar  knowledge  of  the  fact.^  And,  on  the  other  hand,  where 
the  question  was,  whether  Nottingham  Castle  was  within  the 
hundred  of  Broxtowe,  certain  ancient  orders,  made  by  the  justices 
at  the  quarter  sessions  for  the  county,  in  which  the  castle  was 
described  as  being  within  that  hundred,  were  held  admissible 
e^ddence  of  reputation ;  the  justices,  though  not  proved  to  be 
residents  within  the  county  or  hundred,  being  presumed,  from 
the  nature  and  character  of  their  offices  alone,  to  have  sufficient 
acquaintance  with  the  subject  to  which  their  declarations  related.^ 
I  Thus  it  appears  that  competent  knowledge  in  the  declarant  is, 
I  in  all  cases,  an  essential  prerequisite  to  the  admission  of  his 
!  testimony  ;  and  that  though  all  the  citizens  are  presumed  to  have 
that  knowledge,  in  some  degree,  where  the  matter  is  of  public 
concernment,  yet,  in  other  matters,  of  interest  to  many  persons, 
some  particular  evidence  of  such  knowledge  is  required. 

§  180.  It  is  to  be  observed,  that  the  exception  we  are  now  con- 


evidence  was  not  attainable  ;  nhi  a  commu-  of  the  subject  in  the  neighborhood  was  a 

niter  arcidentihus,  probatio  difficilis  est,  fama  fact  also  relied  on  in  the  Roman  law,  in 

plenum  solet  probationem  facere ;  ut  in  proba-  cases  of  proof  by  common  fame.     '' Quan- 

tione  Jiliationis.     But  Mascardus  deems  it  do   testis   vult  probare  aUquem  scivisse, 

not  sufBcient,  in  cases  of  pedigree  within  non  videtur  sufficere,  quod  dicat  ille  scivit 

the  memory  of  man,  which  he  limits  to  quia  erat  vicinus  ;    sed  debet  addere,  in 

fifty-six  years,  unless  aided  by  other  evi-  viciuia  hoc  erat  cognitmn  per  famam,  vel 

dence,  —  tunc  ncmpe  non  suffi.cer«t publica  vox  aliomodo;  et  ideo  iste,  qui  erat  vicinus, 

et  fama,  sed  una  cum  ipsa  deba-d  tractatus  et  potuit  id  scire."     J.  Meuochius,  De  Prae- 

nominatio  probari  vel  alia  adminimla  urgentia  simip.  torn.  2,  lib.  6,  Praes.  24,  n.  17,  p. 

adhiberi.    Mascard.  De  Prob.  vol.  1,  Concl.  772. 

411,  n.  1,  2,  6,  7.  2  Rogers  v.  Wood,  2  Barn.  &  Ad.  245. 

1  Weeks  v.  Sparke,  1  M.  &  S.  679,  G88,         ^  Duke  of  Newcastle  v.  Broxtowe,  4 

per  Le  Blanc,  J.     The  actual  discussion  Barn.  &  Ad.  273. 


l'>4  LAW    OF   EVIDENCE.  [PART   II. 

sidering  is  admitted  oyily  in  the  case  of  ancient  rights,  and  in  respect 
to  the  declarations  of  persons  supposed  to  be  dead}  It  is  required 
by  the  nature  of  the  rights  in  question ;  tlieir  origin  being  gen- 
erally antecedent  to  the  time  of  legal  memory,  and  incaj)aljle  of 
direct  proof  by  living  witnesses,  both  from  this  fact,  and  also  from 
the  undefined  generality  of  their  nature.  It  has  been  held,  that 
where  the  nature  of  the  case  admits  it,  a  foundation  for  the  rece]> 
tion  of  hearsay  evidence,  in  matters  of  public  and  general  interest, 
should  first  be  laid  by  proving  acts  of  enjoyment  within  the  period 
of  living  memory .2  But  tliis  doctrine  has  since  been  overruled; 
and  it  is  now  held,  that  such  proof  is  not  an  essential  condition 
of  the  reception  of  evidence  of  reputation,  but  is  only  material, 
as  it  affects  its  value  when  received.^  Where  the  nature  of  the 
subject  does  not  admit  of  proof  of  acts  of  enjoyment,  it  is  obvious 
that  proof  of  reputation  alone  is  sufficient.  iSo,  where  a  right  or 
custom  is  established  by  documentary  evidence,  no  proof  is  neces- 
sary of  any  particular  instance  of  its  exercise ;  for,  if  it  were 
otherwise,  and  no  instance  were  to  happen  within  the  memory  of 
I  man,  the  right  or  custom  would  be  totally  destroyed.*  In  the 
case  of  a  private  right,  however,  where  proof  of  particular  instances 
of  its  exercise  has  first  been  given,  evidence  of  reputation  has 
sometimes  been  admitted  in  confirmation  of  the  actual  enjoyment ; 
but  it  is  never  allowed  against  it.'^ 

§  131.  Another  important  qualification  of  the  exception  we  have 
been  considering,  by  which  evidence  of  reputation  oi*  common 
fame  is  admitted,  is,  that  tKe  declaration  so  received  must  have 

1  Moseley  v.  Davies,  11  Price,  162 ;  Re-  ^  White  v.  Lisle,  4  Mad.  R.  214,  225. 

gina  V.  Milton,  1  Car.  &  Kir.  58  ;  Davis  v.  See  Morewood  v.  Wood,  14  East,  330,  n., 

Fuller,  12  ViTiii.  K.  178.  per  liuUer,  J. ;  Weeks  v.  Sparke,  1  M.  & 

^  Per  Bailor,  J.,  in  Morewood  v.  Wood,  S.  6'JO,  per  Baylcy,  J. ;  Rogers  i'.  Allen,  1 

14  East,  330,  note ;   per  Le  Blanc,  J.,  in  Campb.  309 ;  Richards  ;•.  Bassctt,  10  B.  & 

Weeks  i'.  Sparke,  1  M.  &  S.  688,  689.  C.  662,  663,  per  Littledale,  J.     A  doctrine 

'•^  Crease  v.  Barrett,  1  Croin[).  Mees.  &  nearly  similar  is  hold  by  the  civilians,  iu 
Rose.  yi'J,  930.  See  also  aco.  Curson  v.  cases  of  ancient  private  rights.  Thus 
Lomax,  5  Esp.  90,  per  Ld.  EUenborough  ;  Mascardus,  after  stating,  upon  the  author- 
Steele  v.  Prickett,  2  Stark.  463,  466,  per  ity  of  many  jurists,  that  iJominium  in  anti- 
Abbott,  C.  J.;  Ratcliff  v.  Chapman,  4  quis  prohdri  per  faimim,traditum  est,  —  vduti 
Leon.  242,  as  explained  by  Grose,  J.,  in  sifama  sit,  fume  domum  fuisse  Dantis  Poetie, 
Beebe  v.  Parker,  5  T.  R.  32.  vel  alterius,  qui  decessit,  jam   sunt    centum 

*  Beebe  v.  Parker,  5  T.  R.  26,  82;  Doe  anni,  et  mmo  vidit,  qui  ridcrit,  quern  rcfert, 

V.  Sisson,  12  East,  62 ;  Steele  ?•.  Prickett,  cljr.,    subse(iuontly    qualities    this    general 

2  Stark.  R.  463,  466.    A  single  act,  undis-  proposition  in  these  words  :  —  Pnmo  limita 

turbed,  has  been  held  sufficient  evidence  princijialcin   conclusionem,    ut    non    jirocedat, 

of  a   custom,    the    court   refusing   to   set  nisi   cum  fame  concuirant  alia   adminicula, 

aside  a  verdict   finding  a   custom    upon  saltern  pnesentis  possessionis.  ^x.  MascarcL 

such  evidence  alone.     Roe  v.  Jeflery,  2  M.  De  Prob.  vol.  2,  Concl.  547,  n.  1,  14. 
&  S.  92;  Doe  v.  Mason,  3  Wils.  63. 


i 

CHAP.  VI.]  MATTERS   OF   GENERAL   INTEREST.  155      ^i" . 

been  made  hefore^anii  controversy  arose,   touchinci-   tlio   jimttcr   to 
which  they  relate  ;  or,  as  it  is  usually  expressed,  ante  litc/n  muta/u. 
The  ground  on  which  such  evidence  is  admitted  at  all  is,  that  tlie     '» 
declarations  "  are  the  natural  effusions  of  a  party  who  must  know 
the  trutli,  and  who  speaks  upon  an  occasion  when  his  mind  stands 
in  an  even  position,  without  any  temptation  to  exceed   or  fall 
short  of  the  truth."  ^     But  no  man  is  presumed  to  be  thus  indif- 
ferent in  regard  to  matters  in  actual  controversy ;  for  when  the  ? 
contest  has  begun,  people  generally  take  part  on  the  one  side  or " 
the  other  ;  their  minds  are  in  a  ferment ;  and  if  they  are  disposed     ^    J 
to  speak  the  truth,  facts  are  seen  by  them  through  a  false  medium,     'y   N 
To  avoid,  therefore,  the  mischiefs  which  would  otherwise  result,   ^  "V 
all  ez  parte  declarations,  even  though  made  upon  oath,  referriiig  ^ 
to  a  date  subsequent'  fo'  tlie  begiiuiing  of  the  controversy,  are'  "^ 
rejected.^     This  rule  of  evidence  was  familiar  in  the  Roman  law ; 
but  the  term  Us  mota  was  there  applied  strictly  to  the  commence- 
ment of  the  action,  and  was  not  referred  to  an  earlier  period  of 
the  controversy .3     But  in  our  law  the  term  lis  is  taken  in  the 
classical  and  larger  sense  of  controversy  ;  and  by  Us  mota  is  under- 
stood the  commencement  of  the  controversy,  and  not  the  com- 
mencement of  the  suit.*     The  commencement  of  the  controversy 
has  been  further  defined  by  Mr.  Baron  Alderson,  in  a  case  of  pedi- 
gree, to  be  "  the  arising  of  that  state  of  facts,  on  which  the  claim 
is  founded,  without  any  thing  more."  ^     [*  And  m  the  late  case  of 
Butler  V.  Mountgarret^  it  was  held,  that  a  controversy  in  a  family, 
though  not  at  that  moment  the  subject  of  a  suit,  constitutes  suflS- 1; 
ciently  a  Us  mota,  to  render  inadmissible  a  letter  written  on  that 
subject  by  one  member  of  the  family  and  addressed  to  another.] 

§  132.  The  Us  mota,  in  the  sense  of  our  law,  carries  with  it  the 
further  idea  of  a  controversy  upon  the  same  particular  subject  in  j"^ 
issue.      For,  if  the  matter  under  discussion  at  the  time  of  trial    ' 

1  Per  Ld.  Eldon,  in  Whitelocke  v.  Juris,  Glossatum,  torn.  1,  col.  553,  ad  Dig. 
Baker,  13  Ves.  514 ;  Rex  v.  Cotton,  3  lib.  iv.  tit.  6,  1.  12.  Lis  mota  censetur, 
Campb.  444,  446,  per  Dampier,  J.  etiamsi  solits  actor  egerit.     Calv.  Lex.  Verb. 

2  The  Berkley  Peerage  case,  4  Campb.  Lis  Mota. 
401,  409,  412,  413  ;   Monkton  v.  The  At-         *  Per  Mansfield,  C.  J.,  in  the  Berkley 
1»rne3'-General,  2  Russ.  &  My.  1(50,  161 ;  Peerage  case,  4  Campb.  417 ;  Monkton  v. 
Richards  v.  Bassett,  10  B.  &  C.  657.  The  Attorney-General,   2  Russ.   &  My. 

3  Lis  est,  lit  primum  in  jus,  vel  in  jitdi-  161. 
cium  venttim  est ;  ant e(]uam  in  judicium  veniu-  ^  Walker  v.   Countess  of  Beaiichamp, 
tur,  controversia  est,  non  lis.     Cujac.  Opera  6  C.  &  P.  552,  561.     But  see  Reilly  v. 
Posth.  tom.  5,  col.  193,  B.  and  col.  162,  D.  Fitzgerald,  1  Drury  (Ir.),  R.  122,  where 
Lis  inchoata  est  ordinata  per  Ubellum,  et  satis-  this  is  questioned. 
dationem,  licet  non  sit  lis  contestata.     Corpus          ^  [*  7  Ho.  Lds.  Cas.  633.] 


"V,      1 


^ 


156  LAW   OF   EVIDENCE.  [PART   II. 

was  not  in  controversy  at  the  time   to  wliicli   the   declarations 
offered  in  evidence  relate,  they  are  admissible,  notwithstanding 
a  controversy  did  then  exist  upon  some  other  branch  of  the  same 
general  subject.     The  value  of  general   reinitation,  as  evidence 
of  the  true  state  of  facts,  dejieuds  ui)on  its  being  the  concurrent 
belief  of  minds  unbiased,  and  in  a  situation  favorable  to  a  knowl- 
edge of  the  truth ;  and  referring  to  a  period  when  this  fountain 
of  evidence  was  not  rendered  turbid  by  agitation.     But  the  dis- 
cussion of  other  topics,  however  similar  in  their  general  nature, 
at  the  time  referred  to,  does  not  necessarily  lead  to.  the  inference, 
that  the  particular  point  in   issue  was   also   controverted,  and, 
therefore,  is  not  deemed  sufficient  to  exclude  the  sort  of  proof  we 
are  now  considering.     Thus,  where,  in  a  suit  between  a  copy- 
holder and  the  lord  of  the  manor,  the  point  in  controversy  was, 
whether  the  customary  fine,  payable  upon  the  renewal  of  a  life- 
lease,  was  to  be  assessed  by  the  jury  of  the  lord's  court,  or  by  the 
reasonable  discretion  of  the  lord  himself;   depositions  taken  for 
the  plaintiff,  in  an  ancient  suit  by  a  copyholder  against  a  former 
lord  of  the  manor,  where  the  controversy  was  upon  the  copy- 
holder's right  to  be  admitted  at  all,  and  not  upon  the  terms  of 
admission,  in  which  depositions  the  customary  fine  was  mentioned 
as  to  be  assessed  by  the  lord  or  his  steward,  were  held  admissible 
evidence  of  what  was  then  understood  to  be  the  undisputed  cus- 
tom.i     In  this  case,  it  was  observed  by  one  of  the  learned  judges, 
that  "the  distinction  had  been  correctly  taken,  that  where  the 
lis  mota  was  on  the  very  point,  the  declarations  of  persons  woidd 
not  be  evidence ;  because  you  cannot  be  sure,  that  in  admitting 
the  depositions  of  witnesses,  selected  and   brought  forward   on 
a  particular  side  of  the  question,  who  embark,  to  a  certain  degree, 
with  the  feelings  and  prejudices  belonging  to  that  particular  side, 
you  are  drawing  evidence  from  perfectly  un})olluted  sources.     But 
where  the  point  in  controversy  is  foreign  to  that  which  was  before 
controverted,  there  never  has  been  a  Us  mota,  and  consequently 
the  objection  does  not  apply." 

§  183.  Declarations  made  after  the  controversy  has  originated, 
are  excluded,  even  though  proof  is  offered  that  the  existence  of 
tlie  controversy  was  not  known  to  the  declarant.  The  question 
of  his  ignorance  or  knowledge  of  this  fact  is  one  which  the  courts 

1  Freeman  v.  riiillips,  4  M.  &  S.  486,  407 ;  Elliott  v.  Piersol,  1  Peters,  328,  337. 


CHAP.  VI.]  MATTERS    OF   GENERAL    INTEREST.  157 

will  not  try ;  partly  because  of  tlie  danger  of  an  erroneous  decision  \ 
of  the  principal  fact  by  the  jury,  from  the  raising  of  too  many  ^ 
collateral  issues,  thereby  introducing  great  confusion  into  the 
cause ;  and  partly  from  the  fruitlessness  of  the  inquiry,  it  being 
from  its  very  nature  impossible,  in  most  cases,  to  prove  that  the 
existence  of  the  controversy  was  not  known.  The  declarant,  in 
these  cases,  is  always  absent,  and  generally  dead.  The  light 
afforded  by  his  declarations  is  at  best  extremely  feeble,  and  far 
from  being  certain ;  and  if  introduced,  with  the  proof  on  both 
sides,  in  regard  to  his  knowledge  of  the  controversy,  it  would 
induce  darkness  and  confusion,  perilling  the  decision  without  the 
probability  of  any  compensating  good  to  the  parties.  It  is  there- 
fore excluded,  as  more  likely  to  prove  injurious  than  beneficial.^ 
[*  The  admissibility  of  the  declarations  of  members  of  the  family 
terminates  with  the  commencement  of  the  controversy,  and  the 
question  is  not  affected,  by  any  knowledge  or  ignorance  on  the 
part  of  the  declarant  of  the  existence  of  the  controversy ;  nor  by 
proof  that  such'  proceedings  were  fraudulently  commenced  with 
.a  view  to  exclude  the  admissibility  of  such  declaration.^  And  it 
is  here  said,  that  it  is  the  commencement  of  the  controversy,  and 
not  of  the  situation  from  which  it  springs,  that  is  to  be  regarded 
as  the  commencement  of  the  Us  mota,  and  as  terminating  the 
admissibility  of  family  declarations.  But  a  declaration  made 
expressly  with  a  view  to  a  probaBTe^Tuture  contest  is  admissible, 
quantum  valeat ;  but  not  if  made  in  a  prior  cause  on  the  same 
subject  matter,  but  to  this  effect  the  same  precise  point  now  in 
controversy  must  have  been  there  involved.^] 

§  134.  It  has  sometimes  been  laid  down,  as  an  exception  to  the 
rule  excluding  declarations  made  post  litem  motam,  that  declara- 
tions concerning  pedigree  will  not  be  invalidated  by  the  circum- 
stance that  they  were  made  during  family  discussions,  and  for  the 

1  The  Berkley  Peerage  case,  4  Campb.  venim  sit,  si  ibidem,  xibi  res  agitiir,  audie- 
417,  per  Mansfield,  C.  J. ;  supra,  §  124.  rit;  at  si  alibi,  in  loco  qui  longissime  dis- 
This  distinction,  and  the  reasons  of  it,  taret,  sic  intellexerit,  ctiani  post  litem 
■were  recognized  in  the  Eoman  law;  but  motam  testes  de  auditu  admittuntnr. 
there  the  rule  was  to  admit  the  declar-  Longinquitas  enim  loci  in  causa  est,  ut 
ations,  though  made  post  litatn  motam,  if  omnis  suspicio  abesse  videatiir  quaj  qtii- 
they  were  made  at  a  place  so  verj'  far  re-  dem  susjiicio  adesse  potest,  quando  testis 
mote  from  the  scene  of  the  controversy,  de  auditu  post  litem  motam,  ibidem,  ubi 
as  to  remove  all  suspicion  that  the  declar-  res  agitur,  dcponit."  IMascard.  De  Pro- 
ant  had  heard  of  its  existence.  Thus  it  bat.  vol.  1,  p.  401  [429],  C'oncl.  410,  n.  5,  6. 
is  stated  hy  Mascard its :  —  "  Istud  autem  -  [*  Shedden  v.  Patrick,  2  Sw.  &  Tr. 
quod  diximus,  debere  testes  deponere  170.  See  Jenkins  v.  Davies,  10  Queen's 
ante  litem  motam,  sic  est  accipiendum,  ut  Bench  Eep.,  n.  s.  314.] 
VOL.  I.                                                           14 


158  LAW   OF    EVIDENCE.  [PART   II. 

purpose  of  preventing  future  controversy ;  and  the  instance  given, 
by  way  of  illustration,  is  that  of  a  solemn  act  of  i)arents,  under 
their  hands,  declaring  the  legitimacy  of  a  child.  But  it  is  con- 
ceived, that  evidence  of  this  sort  is  admissilde,  not  by  way  of 
exception  to  any  rule,  but  because  it  is,  in  its  own  nature,  original 
evidence  ;  constituting  part  of  the  fact  of  the  recognition  of  exist- 
ing relations  of  consanguinity  or  aflfiinity ;  and  falling  naturally 
under  the  head  of  the  expression  of  existing  sentiments  and  affec- 
I  tions,  or  of  declarations  against  the  interest,  and  peculiarly  within 
the  knowledge  of  the  party  making  them,  or  of  verbal  acts,  ])art 
of  the  res  gestce} 

§  135.  Where  evidence  of  reputajion  is  admitted,  in  cases  of 
public  or  gciicrar  interest,  it  is  not  necess_ary  that  the  witness 
should  be  able  to  specify  from  whom  he  heard  the  declarations.  For 
that,  in  much  the  greater  number  of  cases,  would  be  impossible ; 
as  the  names  of  persons  long  since  dead,  by  whom  declarations 
upon  topics  of  common  repute  have  at  some  time  or  other  been  . 

made,  are  mostly  forgotton.^     And,  if  the  declarant  is  known,  and  ^ 

appears  to  have  stood  in  pari  casu  with  the  i)arty  offering  his    v   ji 
declarations  in  evidence,  so  that  he  could  not,  if  living,  have  l)eenj     v 
personally  examined  as  a  witness  to  the  fact  of  which  he  speaks,!  y].; 
this  IS  no  valid  objection  to  the  admissibility  of  his  declarations. 
The  reason  is,  the  absence  of  opportunity  and  motive  to  consult 
his  interest,  at  the  time  of  speaking.     Whatever  secret  wish  or 
bias  he  may  have  had  in  the  matter,  there  was,  at  that  time,  no 
excited  interest  called  forth  in  his  breast,  or,  at  least,  no  means 
were  afforded  of  promoting,  nor  danger  incurred  of  injuring  any 
interest  of  his  own;  nor  could  any  such  be  the  necessary  result 
of  his  declarations.     Whereas,  on  a  trial,  in  itself  and  of  necessity 
directly  affecting  his  interest,  there  is  a  double  objection  to  ad- 
mitting his  evidence,  in  the  concurrence  both  of  the  temptation 
of  interest,  and  the  excitement  of  the  Us  mota.^ 

§  130.  Indeed  the  rejection  of  the  evidence  of  reputation,  in 

1  Supra,  §§  102-108, 131 ;  Goodripht  ?'.  (iralmiu,  B. ;  Deaclc  i\  TTanwck,  13  Price, 
Mo8S,  Cowp."  ij'.tl  ;  Monkton  v.  The  Attor-  2:5(),  1^37  ;  Nichols  v.  Parkor,  14  East,  331, 
ncy-GciuTal,  "2  liuss.  &  Mv.  147,  1(10,  1(11,  note;  llarwood  /•.  Sims,  AVii;htw.  1V2; 
1114;  Slaiicy  r.  Wade,  1  My.  &  Cr.  3;!8 ;  Freeman  v.  Pliillii)s,  4  M.  &  S.  4W1,  491, 
The  Berkley  l'cera<re  case,  4  Campb.  418,  cited  and  approved  by  Lyndhurst,  C.  B., 
per  Mansfield,  C.  J.  in  Davies  v.  Morgan,  1  C.  &  J.,  593,  594 ; 

2  Moselev  v.  Davies,  11  Price,  162, 174,  Monkton  v.  Attorney-General,  2  Russ.  & 
per  Kichanfs,  C  B. ;  Harwood  v.  Sims,  My.  159,  IGO,  per  Ld.  Cli.  Broujiham ; 
Wifrhtw.  112.  Keed  v.  Jackson,  1  East,  3-'35,  357  ;   Cliap- 

i*  Moscley  v.  Davies,  11  Price,  179,  per    man  v.  Cowlan,  13  East,  10. 


CHAP.  VI.]  MATTERS    OF    GENERAL    INTEREST.  159 

cases  of  public  or  general  interest,  because  it  may  bave  come  from 
persons  in  pari  casu  witli  tlic  party  offering  it,  would  be  inconsist- 
ent witb  tlie  qualification  of  the  rule  which  has  already  been 
mentioned,  namely,  that  the  statement  thus  admitted  must  appear 
to  have  been  made  by  persons  having  competent  knowledge  of  the 
subject.^  Without  such  knowledge,  the  testimony  is  worthless. 
In  matters  of  public  right,  all  persons  are  presumed  to  possess 
that  degree  of  knowledge,  which  serves  to  give  some  weight  to 
their  declarations  respecting  them,  because  all  have  a  common 
interest.  But  in  subjects  interesting  to  a  comparatively  small 
portion  of  the  community,  as  a  city  or  parish,  a  foundation  for 
admitting  evidence  of  reputation,  or  the  declarations  of  ancient 
and  deceased  persons,  must  first  be  laid,  by  showing  that,  from 
their  situation,  they  probably  were  conversant  vnth  the  matter  of 
which  they  were  speaking.^ 

§  137.  The  probable  want  of  competent  hrwivledge  in  the  declarant, 
is  the  reason  generally  assigned  for  rejecting  evidence  of  reputation 
or  common  fame,  in  matters  of  mere  private  right.  "  E\'idence  of 
reputation,  upon  general  points,  is  receivable,"  said  Lord  Kenyon, 
"  because,  all  mankind  being  interested  therein,  it  is  natural  to 
suppose  that  they  may  be  conversant  with  the  subjects,  and  that 
they  should  discourse  together  about  them,  having  all  the  same 
•means  of  information.  But  how  can  this  apply  to  private  titles, 
either  with  regard  to  particular  customs,  or  private  prescriptions  ? 
How  is  it  possible  for  strangers  to  know  any  thing  of  what  con- 
cerns only  private  titles  ?  "  ^  The  case  of  prescriptive  rights  has 
sometimes  been  mentioned  as  an  exception ;  but  it  is  believed 
that  where  evidence  of  reputation  has  been  admitted  in  such  cases, 
it  will  be  found  that  the  right  was  one  in  which  many  persons 
were  equally  interested.     The  weight  of  authority,  as  well  as  the 

1  Supra,  §§  128,  129.  turn,  possint  pro  sua  communitate  deponere. 

2  Weeks  v.  Sparke,  1  M.  &  S.  679,  686,  Licet  hiijiismoili  testes  sint  de  imiversitate,  et 
690 ;  Doe  d.  Molesworth  i\  Sleeman,  1  dejionan't  super  confinihus  suk  imiversitatis, 
New  Pr.  Cas.  170  ;  Morewood  v.  Wood,  14  probant,  dummoditm  pnecipuum  ipsi  commo- 
East,  327,  note  ;  Crease  v.  Barrett,  1  Cr.  dum  non  sentiaM,  licent  in/erant  commodum  In 
M.  &  Ros.  929 ;  Duke  of  Newcastle  v.  universum."  Mascard.  "l)e  Probat.  vol.  i, 
Broxtowe,  4  B.  &  Ad.  278  ;  Rogers  v.  rp.  389,  300,  Conel.  395,  n.  1,  2,  9,  19. 
Wood,  2  I?.  &  Ad.  245.  The  Roman  law,  '-^  Morewood  v.  Wood,  14  East,  329, 
as  stated  by  Mjiscardus,  agrees  with  the  note,  per  Ld.  Kenyon  ;  1  Stark.  Evid.  oO, 
doctrine  in  the  text.  "  Conjines  prohantur  31 ;  Clothier  v.  Chapman,  14  East,  331, 
per  testes.  Verum  scias  velim,  testes  in  hac  note ;  Reed  v.  Jackson,  1  East,  357 ;  Out- 
materia,  qid  vicini,  et  cirnim  ibi  habitant,  ram  is,  ^lorewood,  5  T.  R.  121,  123 ; 
esse  magis  idoneos  quam  alios.  Si  testes  non  Weeks  v.  Sparke,  1  M.  &  S.  679. 
sentiant  commodum  vel  incommodum  imviedia- 


'^        IGO  LAW   OF  EVIDENCE.  [PART  11. 

T         reason  of  the  rule,  seem  alike  to  forbid  the  admission  of  this  kind 
1  of  evidonee,  except  in  cases  of  a  public  or  quasi  public  nature.^ 

v^  §  l^S.  Tliis  principle  may  serve  to  explain  and  reconcile  what 

^5       is  said  in  the  books  respecting  the  admissibility  of  reputation^  m 
«5      regard  io  particular  facts.     Upon  general  points,  as  we  have  seen, 
*.-_      such  evidence  is  receivable,  because  of  the  general  interest  which 
^      the  community  have  in  them;  but  particular  facts  of  a  private 
A      nature,  not  being  notorious,  may  be  misrepresented  or  misunder- 
stood, and  may  have  been  connected  with  other  facts,  by  which,  if 
\     known,  their  effect  might  be  limited  or  explained.     Bcputation 
[x^     as  to  the  existence  of  such  particular  facts  is,  therefore,  rejected. 
.  ^^  But,  if  the  particular  fact  is  proved  aliujide,  evidence  of  general 
reputation  may  be  received  to  qualify  and  explain  it.     Thus,  in  a 
:   i     'suit  for  tithes,  where  a  ])arochial  modus  of  sixpence  per  acre  was 
"  ^     set  up,  it  was  conceded  that  evidence  of  reputation  of  tlie  payment 
^  0    of  that  sum  for  one  piece  of  land  would  not  be  admissible  ;  but  it 
was  held,  that  such  evidence  would  be  admissible  to  the  fact  that 
it  had  always  been  customary  to  pay  that  sum  for  all  the  lands  in 
j  the  parish.2     xind  where  the  question  on  the  record  was  whether 
I  a  turnpike  was  within  the  limits  of  a  certain  town,  evidence  of 
V-  i  general  reputation  was  admitted  to  show  that  the  bounds  of  the 
^  -^  '  town  extended  as  far  as  a  certain  close ;  but  not  that  formerly 
;  there  were  houses,  where  none  then  stood;  the  latter  being  a 

1  Ellicott  V.  Pearl,  10  Peters,  412;  Lowes,  2  M.  &  S.  494,  500,  where  the 
Kichards  v.  Bassett,  10  B.  &  C.  657,  662,  question  was  as  to  the  jreneral  usajxe  of  all 
GG3,  per  Littleilale,  J. ;  supra,  §  loO.  Tlie  the  tenants  of  a  manor,  the  defendant 
following  are  cases  of  a  quasi  puhlic  na-  being  one,  to  cut  certain  woods  ;  —  lii-ett 
tvu-e  ;  though  tlioy  are  usually,  but,  on  the  v.  Beales,  1  Mood.  &  JMalk.  416,  which 
foregoing  principles,  erroneously,  cited  in  was  a  claim  of  ancient  tolls  belonging  to 
favor  of  the  admissibility  of  evidence  of  the  Corporation  of  Cambridge;  —  White 
reputation  in  cases  of  mere  private  right,  v.  Lisle,  5  Madd.  Ch.  11.  2li,  224,  225, 
Bp.  of  Meath  v.  Ld.  Belfleld,  Bull.  N.  P.  where  evidence  of  reputation,  in  regard 
295,  where  the  question  was,  who  pre-  to  a  parochial  modus,  was  held  admissi- 
sented  the  former  incumbent  of  a  parish  ;  ble,  because  "  a  class  or  district  of  per- 
a  fact  interesting  to  all  the  parishioners  ;  sons  was  concerned  ; "  but  denied  in 
Price  V.  Littlewood,  3  Campb.  288,  where  regard  to  a  farm  modus,  because  none  but 
an  old  entry  in  the  vestry-book,  by  the  the  occupant  of  the  farm  was  concerned, 
church-wardens,  sliowing  by  what  jiersons  In  Davies  v.  Lewis,  2  Chitty,  K.  5;;5,  the 
certain  i)arts  of  the  church  were  repaired,  declarations  offered  in  evidence  were 
in  considenitiim  of  their  occupancy  of  clearly  admissible,  as  being  those  of  ten- 
pews,  was  admitted,  to  show  title  to  a  pew,  ants  in  possession,  stating  under  whom 
in  one  under  whom  the  plaintiff  claimed  ;  they  held.  See  supra,  §  108. 
—  Barnes  r.  Mawson,  1  M.  &  S.  77,  wliich  -  Ilarwood  v.  Sims,  Wightw.  112,  more 
was  a  question  of  boundary  between  two  fully  rejtorted  and  explained  in  Moseley  r. 
large  district.s  of  a  manor  called  the  Old  Davies,  11  Price,  162,  16U-172;  Chatfield 
and  New  I>ands  ;  —  Anscomb  i'.  Shore,  1  v.  Fryer,  1  Price,  253 ;  Wells  v.  Jesus 
Taunt.  261,  where  the  right  of  common  College,  7  C.  &  P.  284 ;  Leathes  v.  New- 
prescribed  for  was  claimed  by  all  the  in-  itji,  4  Price,  355. 
liubitants     of    Hampton  ;  —  Blackett     v. 


CHAP.  VI.]  MATTERS   OF   GENERAL   INTEREST.  161 

particular  fact,  in  which  the  public  had  no  interest.^  So,  wliere, 
upon  an  information  against  the  sheriff  of  the  county  of  Chester, 
for  not  executing  a  death-warrant,  the  question  was  whether  the 
sheriff  of  the  county  or  the  sheriffs  of  the  city  were  to  execute 
sentence  of  death,  traditionary  evidence  that  the  sheriffs  of  the 
county  had  always  been  exempted  from  the  performance  of  that 
duty  was  rejected,  it  being  a  private  question  between  two  indi- 
viduals ;  the  public  having  an  interest  only  that  execution  be  r^yj^ 
done,  and  not  in  the  person  by  whom  it  was  performed.^     The  ^. 


^  €" 


question  of  the  admissibility  of  this  sort  of  evidence  seems,  there- 
fore, to  turn  upon  the  nature  of  the  reputed  fact,  whether  it  was 
interesting  to  one  party  only,  or  to  many.  If  it  were  of  a  public 
or  general  nature,  it  falls  within  the  exception  we  are  now  con- 
sidering, by  which  hearsay  evidence,  under  the  restrictions  already 
mentioned,  is  admitted.  But  if  it  had  no  connection  with  the 
exercise  of  any  public  right,  nor  the  discharge  of  any  public  duty, 
nor  with  any  other  matter  of  general  interest,  it  falls  within  the 
general  rule,  by  which  hearsay  evidence  is  excluded.^ 

§  139.  Hitherto  we  have  mentioned  oral  declarations,  as  the 
medium  of  proving  traditionary  reputation  in  matters  of  public 
and  general  interest.  The  principle,  however,  upon  which  these 
are  admitted,  applies  to  documentary  and  all  other  kinds  of  proof 
denominated  hearsay.  If  the  matter  in  controversy  is  ancient,  and 
not  susceptible  of  better  evidence,  any  proof  in  the  nature  of  tradi- 
tionary declarations  is  receivable,  whether  it  be  oral  or  written  ; 
subject  to  the  qualifications  we  have  stated.  Thus,  deeds,  leases, 
and  other  private  documents,  have  been  admitted,  as  declaratory 
of  the  public  matters  recited  in  thom.'^     Maps,  also,  showing  tlie 

1  Ireland  if.  Powell,  Salop.   Spr.  Ass.  3  T.  R.  709,  per  Grose,  J.     Where  partic-' 
1802,  per  Chanibre,  J. ;  Peake's  Evid.  13,  ular  knowk'djie  of  a  tact  is  souplit  to  he 
14  (Norris's  edit.  p.  27).  (*  It  is  no  ground  brouglit  home  to  a  party,  evidence  of  the."  ~ 
of  objection  to  the  admissibility  of  such  general  reinitation  and  belief  of  the  exist-       v 
evidence,  that  matters  of  private  interest  ence  of  that  fact,  among  liis  neighbors,  is         ^ 
are  also  involved   in   the   public   contro-  admissible  to  llie  jury,  as  tending  to  show 
versy.     Reg.  v.  Bedford,  4  Kl.  &  Bl.  535.  that  he  also  had  knowledge  of  it,  as  well 

S.  C.  29  Eng.  Law  and  Eq.  II.  89.]  as  they.     Brander  r.  Eerritlv,  16  Louisi- 

2  Rex  V.  Antrobus,  2  Ad.  &  El.  788,     ana,  R.  296. 

794.  *  Curzon  v.  Lomax,  5  Esp.  60;  Brett 

3  White  V.  Lisle,  4  Madd.  Ch.  R.  214,  v.  Beales,  1  M.  &  M.  416  ;  Claxton  v. 
224,  225  ;  Bp.  of  Meath  v.  Ld.  Belfield,  1  Dare,  10  B.  &  C.  17  ;  Clarkson  r.  Wood- 
Wils.  215;  Bull.  N.  P.  295;  Weeks  v.  house,  5  T.  R.  412,  n. ;  3  Doug.  189, 
Sparke,  1  M.  &  S.  679  ;  Withnell  v.  Gar-  s.  c. ;  Barnes  v.  Mawson,  1  M.  &  S.  77, 
tham,  1  Esp.  322 ;  Doe  v.  Thomas,  14  78  ;  Coombs  t:  Coether,  1  M.  &  M.  398 ; 
East,  323  ;  Phil.  &  Am.  on  Evid.  258  ;  1  Beebe  v.  I'arker,  5  T.  R.  26  ;  Freeman  v. 
Stark.  Evid.  84,  35 ;  Outram  r.  More-  Phillips,  4  M.  &  S.  486 ;  Crease  i-.  Bar- 
wood,  5  T.  R.  121,  123 ;  Rex  v.  Eriswell,  rett,  1  Cr.  Mees.  &  Ros.  923 ;   Denn  v.     ' 

14* 


162 


LAW   OF   EVIDENCE. 


[part  II. 


boundaries  of  towns  and  parishes,  are  admissible,  if  it  appear  that 
they  have  been  made  by  persons  liaving  adequate  knowledge.^ 
Verdicts,  also,  are  receivable  evidence  of  reputation,  in  questions 
of  public  or  general  interest.^  Thus,  for  example,  where  a  public 
right  of  way  was  in  question,  the  plaintiff  was  allowed  to  show  a 
verdict  rendered  in  his  own  favor,  against  a  defendant  in  another 
suit,  in  which  the  same  right  of  way  was  in  issue ;  but  Lord 
Kenyon  observed,  that  such  evidence  was,  perhaps,  not  entitled 
to  much  weight,  and  certainly  was  not  conclusive.  The  circum- 
stance, that  the  verdict  was  post  litem  motam,  does  not  affect  its 
admissibility.^ 

§  140.  It  is  further  to  be  observed,  that  reputation  is  evidence 
as  well  against  a  public  right  as  in  its  fayw^^Accordingly,  where 
the  question  was,  whether  a  landing-place  was  public  or  private 
property,  reputation,  from  the  declaration  of  ancient  deceased 
persons,  that  it  was  the  private  landing-place  of  the  party  and  his 
ancestors,  was  held  admissible  ;  the  learned  judge  remarking, 
that  there  was  no  distinction  between  the  evidence  of  reputation 
to  establish,  and  to  disparage  a  public  right.^ 


Spray,  1  T.  K.  46G  ;  Bullen  v.  Michel,  4 
Dow,  298  ;  Taylor  v.  Ccjok,  8  Price,  650. 

1  1  Phil.  Evid.  250,  251;  Alcock  v. 
Cooke,  2  Moore  &"  Payne,  625;  5  Bing. 
340,  s.  c. ;  Noyes  v.  White,  19  Conn.  250. 
Upon  a  question  of  houndary  between  two 
Ikrms,  it  being  proved  that  the  boundary 
of  one  of  tlieni  wa.s  identical  with  that  of 
a  hamlet,  evidence  of  reputation,  as  to  the 
bounds  of  the  hamlet  was  held  admissible. 
Thomas  v.  Jenkins,  1  N.  &  P,  588.  But 
an  old  map  of  a  parish,  produced  from  the 
parish  chest,  and  which  was  made  under 
a  private  inclosure  act,  was  held  inadmis- 
sible evidence  of  boundary,  without  proof 
of  the  inclosure  act.  lieg.  v.  Milton,  1  C. 
&  K.  58. 

^  But  an  interlocutory  decree  for  pre- 
serving the  status  quo,  until  a  final  de- 


cision upon  the  right  should  be  had,  no 
final  decree  ever  having  been  made,  is 
inadmissible  as  evidence  of  reputation. 
Pini  V.  Currell,  6  M.  &  W.  234. 

«  Keed  v.  Jackson,  1  East,  355,  357 ; 
Bull.  N.  P.  233  ;  City  of  London  v.  Clarke, 
Carth.  181 ;  Rhodes  v.  Ainsworth,  1  B.  & 
Aid.  87,  89,  per  Holroyd,  J. ;  Lancum  v. 
Lovell,  9  Bing.  465,  469  ;  Cort  v.  Birkbeck, 
1  Doug.  218,  222,  per  Lord  Mansfield  ; 
Case  of  the  Manchester  Mills,  1  Doug. 
221,  ri. ;  Berry  ?'.  Banner,  Peake's  Cas. 
156  ;  Biddulph  v.  Ather,  2  Wils.  23  ; 
Brisco  V.  Lonuix,  3  N.  &  P.  388  ;  Evans  v. 
Kees,  2  P.  &  D.  627 ;  10  Ad.  &  El.  151, 
s.  c. 

*  Drinkwater  r.  Porter,  7  C.  &  P.  181; 
R.  V.  Sutton,  3  N.  &  P.  569. 


CHAP.  VII.]  OF   ANCIENT   POSSESSIONS.  163 


CHAPTEE    YII. 

OF  ANCIENT   POSSESSIONS. 

[*  §  141.  Ancient  documents  admitted  to  establish  ancient  possessions. 

142.  The  document  must  come  from  the  proper  custody. 

143.  Generally  required  that  acts  of  use  under  them  be  shown. 

144.  These  documents  should  appear  to  be  parts  of  the  transactions  in  question. 

145.  Under  same  restrictions  reputation  received  to  establish  public,  but  not  pri- 

vate, boundaries. 

146.  Perambulations  of  public  boundaries  estabUshed  in  a  similar  manner.] 

§  141.  A  second  exception  to  the  rule,  rejecting  hearsay  evidence, 
is  allowed  in  cases  of  ancient  possession,  and  in  favor  of  the  admis- 
sion of  ancient  documents  in  support  of  it.  In  matters  of  private 
right,  not  affecting  any  public  or  general  interest,  hearsay  is 
generally  inadmissible.  But  the  admission  of  ancient  documents, 
purporting  to  constitute  part  of  the  transactions  themselves,  to 
which,  as  acts  of  ownership,  or  of  the  exercise  of  right,  the  party 
against  whom  they  are  produced  is  not  privy,  stands  on  a  different 
principle.  It  is  true,  on  the  one  hand,  that  the  documents  in 
question  consist  of  evidence  which  is  not  proved  to  be  part  of  any 
res  gestce,  because  the  only  proof  of  the  transaction  consists  in  the 
documents  themselves ;  and  these  may  have  been  fabricated,  or, 
if  genuine,  may  never  have  been  acted  upon.  And  their  effect,  if 
admitted  in  evidence,  is  to  benefit  persons  connected  in  interest 
with  the  original  parties  to  the  documents,  and  from  whose 
custody  they  have  been  produced.  But,  on  the  other  hand,  such 
documents  always  accompany  and  form  a  part  of  every  legal 
transfer,  of  title  and  possession  by  act  of  the  parties ;  and  there 
is,  also,  some  presumption  against  their  fabrication,  where  they 
refer  to  co-existing  subjects  by  which  their  truth  might  be  exam- 
ined.i  On  this  ground,  therefore,  as  well  as  because  such  is 
generally  the  only  attainable  evidence  of  ancient  possession,  this 
proof  is  admitted,  under  the  qualifications  Avhich  will  be  stated. 

1  1  Phil.  Evid.  273  ;  1  Stark  Evid.  66,  67  ;  Claikson  v.  Woodhousc,  5  T.  E.  413,  n., 
per  Ld.  Mansfield. 


164 


LAW   OF   EVIDENCE. 


[part  ir. 


§  142.  As  the  value  of  these  documents  depends  mainly  on 
their  having  been  contemporaneous,  at  least,  with  the  act  of 
transfer,  if  not  part  of  it,  care  is  firat  taken  to  ascertain  their 
genuineness ;  and  this  may  be  shown  ^;ri;?z^?  facie,  by  ])roof  that 
the  document  comes  from  the  lyroper  custody,  or  by  otherwise 
accounting  for  it.  Documents  found  in  a  place,  in  which,  and 
X  under  the  care  of  persons,  with  whom  such  papers  might  naturally 
and  reasonably  be  expected  to  be  found,  or  in  the  possession  of 
persons  having  an  interest  in  them,  are  in  precisely  the  custody 
which  gives  authenticity  to  documents  found  within  it.^  "  For 
it  is  not  necessary,"  observed  Tindal,  C.  J.,  "  that  they  should  be 
found  in  the  best  and  most  proper~place  of  deposit!  If  documents 
continue  in  such  custody,  there  never  would  be  any  question  as 
to  their  authenticity ;  but  it  is  when  documents  are  found  in  other 
than  their  proper  place  of  deposit,  that  the  investigation  com- 
mences, whether  it  is  reasonable  and  natural,  under  the  circum- 
stances in  the  particular  case,  to  expect  that  they  should  have, 
been  in  the  place  where  they  are  actually  found  ;  for  it  is  obvious, 
that,  while  there  can  be  only  one  place  of  deposit  strictly  and 


1  Per  Timlal,  C.  J.,  in  Bishop  of 
Meath  v.  Marq.  of  Winchester,  2  Bing. 
N.  c.  183,  200,  201,  expounded  and  con- 
firmed by  Barlic,  B.,  in  Ci'oughton  v. 
Blake,  12  M.  &  W.  205,  208  ;  and  in  Doe 
d.  Jacobs  V.  PhilHps,  10  Jur.  34 ;  8  Ad.  & 
El.  158,  N.  s.  See  also  Lygon  /;.  Strutt,  2 
Anstr.  601 ;  Swinnerton  v.  Marq.  of  Staf- 
ford, 3  Taunt.  91  ;  Bullen  v.  Michel,  4 
Dow.  297  ;  Earl  v.  Lewis,  4  Esp.  1  ;  Kan- 
dolph  V.  Gordon,  5  Price,  312 ;  Manby  v. 
Curtis,  1  Price,  225,  232,  per  Wood,  B. ; 
Bertie  v.  Beaumont,  2  I'rice,  303,  307  ; 
Barr  v.  Gratz,  4  Wheat.  213,  221  ;  Winne 
V.  Patterson,  9  Peters,  063-675 ;  Clarke  v. 
Courtney,  5  Peters,  319,  344 ;  Jackson  v, 
Laroway,  3  Johns.  Cas.  383,  approved  in 
Jackson  v.  Luquere,  5  Cowen,  221,  225 ; 
Hewlett  V.  Cock,  7  Wend.  371,  374;  Dun- 
can V.  Beard,  2  Nott  &  McC.  400  ;  IMiddle- 
t<m  V.  Mass,  2  Nott  &  McC.  55;  Doe  *'. 
Bevnon,  4  P.  &  D.  193  ;  infra,  §  570;  Doe 
V.  Pearce,  2  M.  &  Rob.  240 ;  Tolman  v. 
Emerson,  4  Pick.  160;  [United  States  v. 
Castro,  2  llow.  346.  j  An  ancient  extent 
of  crown  lands,  found  in  the  office  of  the 
hind  revenue  records,  it  being  the  jirop- 
er  repository,  and  purporting  to  have  been 
made  by  the  proper  officer,  has  been  held 
good  evidence  of  the  title  of  the  crown  to 
lands  therein  stated  to  have  been  pur- 
chased by  the  crown  from  a  subject. 
Doe  d.  Wm.  IV.  v.  lioberts,  13  M.  &  W. 


r<; 

v*;^ 


520.     [An  ancient  private  survey  is  not 
evidence.     Daniel  v.  Wilkin,  7  Exch.  ¥\.. 
429.]     Court*  will  be  liberal  in  admitting 
deeds,  where   no   suspicion  arises    as  to  "^  \ 
their  authenticity.     Doe   v.    Keeling,  36    *?    ^ 
Leg.  Obs.  312;  12  Jur.  433  ;  11  Ad.  &  El.~<  ,J 
884,  N.  s.     The  proper  custody  of  an  ex-     , 
pired   lease   is   that  of  the  lessor;    Ibid.  ^  ,-J 
per  Wightman,  J.     Whether  a  document   J  > 
comes  from  the  proper  custody  is  a  ques-  *^  n 
tion  for  the  judge  and  not  for  the  jury  to  ^ 
determine  ;  Ibid.  Rees  v.  Walters,  o  M.  & 
W.  527,  531.     The  rule  stated  in  the  text 
is  one  of  the  grounds  on  which  we  insist  v 
on  tlie  genuineness  of  the  books  of  the    T  ^ 
"Holy    Scriptures.      They   are    found    in  ^^V 
the  proper  custody,  or  place,  where  alone    *i  <f 
they  ouglit  to  be  "looked  for;  namely,  th^r-^  "» 
Church,  where  they  have  lieen  kept  froni  3^^  ♦ 
time  immemorial.     They  have  been  con-        <J 
stantly  referred   to,  as   the  foundation    of    ^^  u 
faith,  by  all  the  opposing  sects,  whose  exx    rj  J 
istence  God,  in  his  wisdom,  has  seen  fit  to/]]*^  A, 
permit;    whose   jealous  vigilance  would  t^S^ 
readil}-  detect  any  attempt  to  falsify  the 
text,  and  whose  diversity  of  creeds  would    "?M 
render  any  n)Utual   combination   morally    "^^ 
in)possihle.       The    burden    of    proof    is, 
therefore,  on    the    objector,    to    impeach 
the  genuineness  of  these  bo^jks  ;   not  on 
the  Christian,  to  establish  it.     See  Green- 
leaf  on  the  Testimonj-  of  the  EvangeUsts, 
PreUm.  Obs.  §  9. 


CHAP.  VII.]  OP   ANCIENT   POSSESSIONS.  .  105 

absolutely  proper,  there  may  be  many  and  various  that  are  reason- 
able and  probable,  though  differing  in  degree ;  some  being  more 
so,  some  less  ;  and  in  those  cases,  the  proposition  to  be  determined 
is,  whether  the  actual  custody  is  so  reasonably  and  probably 
accounted  for,  that  it  impresses  the  mind  with  the  conviction  that 
the  instrument  found  in  such  custody  must  be  genuine.  That 
such  is  the  character  and  description  of  the  custody,  which  is  held 
sufficiently  genuine  to  render  a  document  admissible,  appears 
from  all  the  cases." 

§  143.  It  is  further  requisite,  where  the  nature  of  the  case  will 
admit  it,  that  proof  be  given  of  some  act  done  in  reference  to  the 
documents  offered  in  evidence,  as  a  further  assurance  of  their 
genuineness,  and  of  the  claiming  of  title  under  thdin.  If  the 
document  bears  date  post  litem  motam,  however  ancient,  some 
evidence  of  correspondent  acting  is  always  scrupulously  required, 
even  in  cases  where  traditionary  evidence  is  receivable.^  But  in 
other  cases,  where  the  transaction  is  very  ancient,  so  that  proof 
of  contemporaneous  acting,  such  as  possession,  or  the  like,  is  not 
probably  to  be  obtained,  its  production  is  not  required.^  But 
where  unexceptionable  evidence  of  enjoyment,  referable  to  the 
document,  may  reasonably  be  expected  to  be  found,  it  must  be 
produced.^  If  such  evidence,  referable  to  the  document,  is  not 
to  be  expected,  still  it  is  requisite  to  prove  some  acts  of  modern 
enjoyment,  with  reference  to  similar  documents,  or  that  modern 
possession  or  user  should  be  shown,  corroborative  of  the  ancient 
documents.^ 

§  144.  Under  these  qualifications,  ancient  documents,  purporting 
to  be  a  part  of  the  transactions  to  icJiich  they  relate,  and  not  a  mere 
narrative  of  them,  are  receivable  as  evidence,  that  those  trans- 
actions actually  occurred.  Aitd  though  they  are  spoken  of  as 
hearsay  evidence  of  ancient  possession,  and  as  such  are  said  to  be 
admitted  in  exception  to  the  general  rule ;  yet  they  seem  rather 
to  be  parts  of  the  res  gestae,  and  therefore  admissible  as  original 
evidence,  on  the  principle  already  discussed.  An  ancient  deed., 
by  which  is  meant  one  more  than  thirty  years  old,  having  nothing 

1  1  Phil.  Evifl.  277 ;  Brett  v.  Beales,  1  »  1  Phil.  Evid.  277 ;  Plaxton  v.  Dare, 

Mood.  &  M.  416  ;  [United  States  v.  Cas-  10  B.  &  C.  17. 

tro,  24  How.  346.1  *  Kogers  v.  Allen,  1  Campb.  309,  311  ; 

'^  Clarkson  v.  Woodhouse,  5  T.  R.  412,  Clarkson  v.  Woodhouse,  5  T.  E.  412,  n. 

413,  n.,  per  Ld.  Mansfield;  supra,  §  180,  See  the  cases  collected  in  note  to  §  144, 

and  cases  there  cited.  infra. 


1 


166 


LAW    OF   EVIDENCE. 


4 

[part  II.    J 


suspicious  about  it,  is  presumed  to  be  genuine  without  express 
proof,  the  witnesses  being  presumed  dead ;  and,  if  it  is  found  in  , 
the  proper  custody,  and  is  corroborated  by  evidence  of  ancient  or  .'^ 
modern  corresponding  enjoyment,^  or  by  other  equivalent  or  ex-"' 
planatory  proof,  it  is  to  be  presumed  that  the  deed  constituted  '^> 
part  of  the  actual  transfer  of  property  therein  mentioned  ;  because  s^ 
this  is  the  usual  and  ordinary  course  of  such  transactions  among 
men.     The  residue  of  the  transaction  may  be  as  unerringly  in-  -^ 
ferred  from  the  existence  of  genuine  ancient  documents,  as  the    ,^ 
remainder  of  a  statue  may  be  made  out  from  an  existing  torso, 
or  a  perfect  skeleton  from  tlie  fossil  remains  of  a  part. 

§  145.  Under  this  head  may  be  mentioned  the  case  of  ancient 
boundaries ;  in  proof  of  which,  it  has  sometimes  been  said,  that 
traditionary  evidence  is  admissible  from  the  nature  and  necessity 
of  the  case.  But,  if  the  principles  already  discussed  in  regard 
to  the  admission  of  hearsay  are  sound,  it  will  be  difficult  to  sustain 
an  exception  in  favor  of  such  evidence  merely  as  applying  to  ^^ 
boundary,  where  the  fact  is  particular,  and  not  of  public  or  j^> 
general  interest.     Accordingly,  though  evidence  of  reputation  is  >» 


V 


1  It  has  been  made  a  question,  whether 
tlie  document  may  be  read  in  evidence, 
before  the  proof  of  possession  or  other 
equivalent  corroborative  proof  is  offered  ;  ■ 
but  it  is  now  stated  that  the  document,  if 
otherwise  apparently  genuine,  may  be  first 
read ;  for  the  question,  wlietlier  tliere 
lias  been  a  corresponding  possession,  can 
liardly  be  raised  till  the  com-t  is  made 
a(;quainted  with  the  tenor  of  the  instru- 
ment. Doe  V.  Passingham,  2  C.  &  P.  440. 
If  the  deed  appears,  on  its  ftice,  to  have 
been  executed  imder  an  authority  which 
is  matter  of  record,  it  is  not  admissible, 
however  ancient  it  may  bo,  as  evidence  of 
title  to  land,  without  proof  of  the  author- 
ity under  which  it  was  e.vecuted.  Tol- 
man  v.  pjmerson,  4  Pick.  UK).  A  graver 
question  has  been,  whether  the  proof  of 
possession  is  indispensable  ;  or  whether 
its  absence  may  be  supplied  by  other 
satisfactory  corroborative  evidence.  In 
Jackson  d.  Lewis  v.  Laroway,  3  Johns, 
(^as.  283,  it  was  held  by  Kent,  J.,  against 
tlie  opinion  of  the  other  judges,  that  it 
was  indispensable ;  on  the  authority  of 
Fleta,  lib.  6,  cap.  34  ;  Co.  Lit.  6  b ;  Isack 
V.  Clarke,  1  RoU.  R.  132 ;  James  v.  Trol- 
loj),  Skin.  239 ;  2.  Mod.  823 ;  Forbes  v. 
Wale,  1  W.  Bl.  R.  532;  and  the  same 
doctrine  was  agam  asserted  by  him,  iu 
delivering  the  judgment  of  the  court,  in 


Jackson  d.  Burhans  ?'.  Blanshan,  3  Johns.' 
292,  298.  See  also  Thompson  v.  Bullock, 
1  Bay,  3U4 ;  Middleton  v.  Mass,  2  Nott  & 
]\IcC.  55 ;  Carroll  v.  Norwood,  1  Har.  &  J. 
174,  175 ;  Shaller  v.  Brand,  6  Binn.  439 ; 
Doe  V.  I'helps,  9  Johns.  169,  171.  But 
the  weight  of  authority  at  present  seems 
clearly  the  other  way ;  and  it  is  now 
agreed  that,  where  proof  of  possession  can- 
not be  had,  the  deed  may  be  read,  if  its 
genuineness  is  satisfactorily  established 
by  other  circumstances.  See  Ld.  Ran- 
ciiffe  V.  Parkins,  6  Dow,  202,  per  Ld. 
Eldon  ;  McKenire  v.  Frazer,  9  Ves.  5; 
Doe  V.  Passingham,  2  C.  &  P.  440 ;  Barr 
v:  Gratz,  4  Wheat.  213,  221 ;  Jackson  d. 
Lewis  V.  Laroway,  3  Johns.  Cas.  283,  287  ; 
Jackson  d.  Hunt  v.  Luquere,  5  Cowen, 
221,  225 ;  Jackson  d.  Wilkins  v.  Lamb,  7 
Cowen,  431  ;  Hewlett  v.  Cock,  7  Wend. 
371,  873,  374 ;  Willson  v.  Betts,  4  Denio, 
201.  Where  an  ancient  document,  pur- 
porting to  be  an  exemplification,  is  pro- 
duced from  the  proper  place  of  deposit, 
having  the  usual  slip  of  parchment  to 
which  the  great  seal  is  appended,  but  no 
appearance  that  any  seal  was  ever  affixed, 
it  is  still  to  be  presumed,  that  the  seal  was 
once  there  and  has  been  accidentally  re- 
moved, and  it  may  be  read  in  evidence  as 
an  exempUfication.  Mayor,  &c.  of  Bever- 
ley V.  Craven,  2  M.  &  Rob.  140. 


i 


\i 


l\- 


CHAP.  VII.] 


OP   ANCIENT   POSSESSIONS. 


IG- 


received,  in  regard  to  the  boundaries  of  parislics,  manors,  and  tlie 
like,  which  are  of  public  interest,  and  generally  of  remote  an- 
tiquity, yet,  by  the  weight  of  authority  and  upon  better  reason, 
such  evidence  is  held  to  be  inadmissible  for  the  purpose  of  proving 
the  boundary  of  a  private  estate,  when  such  boundary  is  not 
identical  with  another  of  a  public  or  quasi  public  nature.^     Where 


1  Ph.  and  Am.  on  Evid.  255,  256 ; 
supra,  §  loii,  note  (2)  ;  Thomas  v.  Jen- 
kins, 1  N.  &  P.  588 ;  Reed  v.  Jackson,  1 
East,  355,  357,  per  Ld.  Kenj^on ;  Doe  v. 
Thomas,  14  East,  323  ;  More  wood  «.  Wood, 
Id.  327,  note ;  Outraai  v.  Morewood,  5 
T.  R.  121,  123,  per  Ld.  Kenyon ;  Nichols 
V.  Parker,  and  Clotliier  v.  Chapman,  in  14 
East,  331,  note  ;  Weeks  v.  Sparke,  1  M.  & 
S.  688,  689  ;  Dura  van  v.  Llewellyn,  15  Q. 
B.  791,  Exch.  Chanc. ;  Cherry  v.  Boyd, 
Littell's  Selected  Cases,  8,  9 ;  1  Phil. 
Evid.  182  (3d  Lond.  ed.),  cited  and  ap- 
proved bv  Tilshman,  C.  J.,  in  liuclianuu 
r.  Moore,"  10  s".  .S.-  R.  281.  Li  the  passage 
thus  cited,  the  learned  author  limits  the 
admissibihty  of  this  kind  of  evidence  to 
questions  of  a  public  or  general  nature ; 
including  a  right  of  common  by  custom  ; 
which,  he  observes,  "  is,  strictly  speaking, 
a  private  right ;  but  it  is  a  general  right, 
and  therefore,  so  far  as  regards  the  admissi- 
bility of  this  species  of  evidence,  has  been 
considered  as  public,  because  it  affects  a  large 
numher  of  occupiers  within  a  district."  Supra, 
§§  128,  138 ;  Gresley  on  Evid.  220,  221. 
And  more  recently,  in  England  it  has 
been  decided  upon  full  consideration,  that 
traditionary  evidence,  respecting  rights 
not  of  a  public  nature,  is  inadmissible. 
Dunraven  v.  Llewellyn,  15  Ad.  &  El.  791, 
N.  s.  The  admission  of  traditionary  evi- 
dence, in  cases  of  boiindaiy,  occurs  more 
fre<iuently  in  the  United  States  than  in 
England.  By  far  tlie  greatest  portion  of 
our  territory  was  originally  surveyed  in 
large  masses  or  tracts,  owned  either  by 
the  State,  or  by  the  United  States,  or 
by  one,  or  a  company,  of  proi)rietors ; 
\mder  whose  authority  those  tracts  were 
again  siu'veycd  and  divided  into  lots  suit- 
able for  single  farms,  by  lines  crossing  the 
whole  tract,  and  serving  as  the  common 
boundary  of  very  many  farm-lots,  lying 
on  each  side  of  it.  So  that  it  is  hardly 
possible,  in  such  cases,  to  prove  the  origi- 
nal boundaries  of  one  farm,  without  affect- 
ing the  common  boundary  of  many  ;  and 
thus,  in  trials  of  this  sort,  the  cuiestion  is 
similar,  in  principle,  to  that  of  tlic  bound- 
aries of  a  manor,  and  therefore  tradition- 
ary evidence  is  freely  admitted.  Such 
was  the  case  of  Boardman  r.  Re<?(l,  6 
Peters,  328,  where  the  premises  in  ques- 


tion being  a  tract  of  eight  thousand  acres, 
were  part  of  a  large  connection  of  surveys, 
made  together,  and  conttiining  between 
fifty  and  one  hundred  tliousand  acres  of 
land ;  and  it  is  to  such  tracts,  interesting 
to  very  many  persons,  that  the  remarks 
of  Mr.  Justice  M'Lean,  in  that  case  (p. 
341),  are  to  be  applied.  In  Conn,  et  al.  v. 
Penn.  et  al.  1  Pet.  C.  C.  Rep.  496,  the 
tract  whose  boundaries  were  in  contro- 
versy was  called  the  manor  of  Spring- 
etsbury  and  contained  seventy  thousand 
acres  ;  in  which  a  great  number  of  indi- 
viduals had  severally  l)ecome  interested. 
In  Doe  d.  Taylor  v.  Roe  et  al.  4  Hawks, 
116,  traditionary  evidence  was  admitted 
in  regard  to  Earl  Granvill's  line,  which 
was  of  many  miles  in  extent,  and  after- 
wards constituted  the  boundary  between 
counties,  as  well  as  private  estat*.  In 
Ralston  v.  Miller,  3  Randolph,  44,  the 
question  was  upon  the  boundaries  of  a 
street  in  the  city  of  Richmond  ;  concern- 
ing which  kind  of  boundaries  it  was  said, 
that  ancient  reputation  and  possession 
were  entitled  to  intinitely  more  respect, 
in  deciding  upon  the  l)()undaries  of  the 
lots,  than  any  experimental  surveys.  In 
several  American  cases,  which  liave  some- 
times been  cited  in  tavor  of  tlie  admissi- 
bility of  traditionary  evidence  of  bound- 
ary, even  though  it  consisted  of  particular 
tacts,  and  in  cases  of  merely  private  con- 
cern, the  evidence  was  clearly  admissible 
on  other  grounds,  either  as  part  of  the 
original  res  (jestw,  or  as  the  declaration  of  a 
party  in  possession,  explanator}-  of  the 
nature  and  extent  of  his  claim.  In  this 
class  may  be  ranked  the  cases  of  Caufman 
V.  The  Congregation  of  Cedar  Spring,  6 
Binn.  59  ;  Sturgeon  r.  Waugh,  2  Yeates, 
476;  Jackscm  d.  McDonald  r.  McCall,  10 
Johns.  377 ;  Hamilton  r.  Minor,  2  S.  >Jc  R. 
70;  Iligley  v.  Bidwell,  9  Conn.  477;  Hall 
V.  Gittings,  2  Ilarr.  &  Johns.  112;  Red- 
ding r.  McCubbin,  1  Har.  &  McHen.  84. 
In  Wooster  c.  Butler,  13  Conn.  R.  309",  it 
was  said  by  Church,  J.,  that  traditionary 
evidence  was  receivable,  in  Connrctirxt.  to 
jnove  tlie  boundaries  of  land  between  in- 
diviilual  proprietors.  But  this  dictum 
was  not  called  for  in  the  case  ;  for  the 
question  was,  whether  there  had  anciently 
been  a  highivaij  over  a  certain  tract  of  ui>- 


168 


LAW   OF   EVIDENCE. 


[part  II. 


the  question  is  of  sncli  general  nature,  whether  it  bo  of  boundary, 
or  of  right  of  common  by  custom,  or  the  Uke,  evidence  of  reputa- 
tion is  admitted  only  under  the  qualifications  already  stated, 
requiring  competent  knowledge  in  the  declarants,  or  persons  from 
whom  the  information  is  derived,  and  that  they  be  persons  Jr^ 


land ;  which  being  a  subject  of  common 
and  general  interest,  was  clearly  within 
the  rule.  It  has,  however,  subsequently 
been  settled  as  a  point  of  local  law  in  that 
state,  that  such  evidence  is  admissible 
to  prove  private  boundaries.  Hinny  v. 
Parnsworth,  17  Conn.  K.  35'),  863.  In 
Poinsi/li-dtiid,  reputation  and  hearsay  are 
held  entitled  to  respect,  in  a  question  of 
boundary,  where  from  lapse  of  time  there 
is  great  difficulty  in  proving  the  existence 
of  the  original  landmarks.  Nieman  v. 
Ward,  1  Watts  &  Serg.  68.  In  Den  d. 
Tate  V.  Southard,  1  Hawks,  45,  the  ques- 
tion was,  wliether  the  Hues  of  the  sur- 
rounding tracts  of  land,  if  made  for  those 
tracts  alone,  and  not  for  the  tract  in  dis- 
pute, might  be  shown  by  reputation,  to  be 
the  "  knutim  and  visible  boundaries  "  of  the 
latter  ^tract,  within  the  fair  meaning  of 
those  words  in  tl)e  statute  of  North  Caro- 
lina, of  IT'Jl,  ch.  15.  It  was  objected,  that 
the  boimdaries  mentioned  in  the  act  were 
th.ose  only,  which  had  been  expressly  re- 
cognized as  the  bounds  of  the  particular 
ti-act  in  question,  by  some  grant  or  mesne 
conveyance  thereof;  but  tlie  objection  was 
overruled.  But  in  a  subsequent  case  (Den 
d.  Sasser  v.  Herring,  3  Dever.  Law  Eep. 
340),  the  learned  chief  justice  admits,  that 
in  that  state,  the  rules  of  the  common  law, 
in  questions  of  private  boundiuy,  have 
been  broken  in  upon.  "  We  have,"  he  re- 
marks, "  in  questions  of  boundary,  given 
to  the  single  declarations  of  a  deceased 
individual,  as  to  a  line  or  corner,  the 
•weight  of  common  reputation,  and  per- 
mitted such  declaratio!is  to  be  proven  ; 
tmder  the  rule,  that,  in  questions  of  bound- 
ary, hearsay  is  evidence.  Wliether  tins 
is  within  the  spirit  and  reason  of  tlie  rule, 
it  is  now  too  late  to  inquire.  It  is  the 
well-establislied  law  of  this  state.  And  if 
the  propriety  of  the  rule  was  now  res 
inle;/ra,  perhaps  the  necessity  of  the  case, 
arising  from  the  situation  of  our  country, 
and  the  want  of  self-evident  termini  of  our 
lands,  would  require  its  adoption.  For, 
although  it  sometimes  leads  to  falsehood, 
it  more  often  tends  to  the  establishment 
of  truth.  From  necessity,  we  have,  in 
this  instance,  sacrificed  the  principles  upon 
which  tlie  rules  of  evidence  are  founded." 


A  similar  course  lias  been  adopted  in  Ten- 
nessee. Beard  v.  Talbot,  1  Cooke,  142. 
In  South  Carolina,  the  declarations  of  a 
deceased  surveyor,  wlio  originally  sur- 
veyed the  land,  are  admissible,  on  a  ques- 
tion as  to  its  location.  Speer  v.  Coate,  3 
McCord,  227  ;  Blytlie  v.  Sutherland,  Id. 
258.  In  Kentucky,  the  latter  practice 
seems  similar  to  that  in  Nortii  Carolina. 
Smith  V.  Nowells,  2  Littell,  Rep.  159; 
Smith  V.  Prewitt,  2  A.  K.  Marsh.  155, 158. 
In  New  Ilrimpshire,  the  like  evidence  has 
in  one  case  been  held  admissible,  upon  the 
alleged  authority  of  the  rule  of  the  com- 
mon law,  in  1  Phil.  Evid.  182  ;  but  in  the 
citation  of  the  passage  by  the  learned 
chief  justice,  it  is  plain,  from  the  omis- 
sion of  part  of  the  text,  that  the  restriction 
of  the  rule  to  subjects  of  pubUc  or  general 
interest  was  not  under  his  consideration. 
Sliepherd  v.  Thompson,  4  N.  Hamp.  Bep. 
213,  214.  More  recently,  however,  it  has 
been  decided  in  that  stale,  "  that  the  dec- 
larations of  deceased  persons,  who,  from 
their  situation,  appear  to  have  had  the 
means  of  knowledge  respecting  private 
boundaries,  and  who  had  no  interest  to 
misrepresent,  may  well  be  admitted  in 
evidence."  Great  Falls  Co.  v.  Worster, 
15  N.  Hamp.  412,  487 ;  Smith  v.  Powers, 
Idem.  546,  564.  Subject  to  these  excep- 
tions, the  general  practice  in  this  country, 
in  the  admission  of  traditionary  evidence 
as  to  boundaries,  seems  to  agree  with  the 
doctrine  of  the  common  law  as  stated  in 
the  text.  In  Weeins  r.  Disney,  4  Har.  & 
McHen.  156,  the  depositions  admitted 
were  annexed  to  a  return  of  commission- 
ers, appointed  under  a  statute  of  Mary- 
land, "  for  marking  and  bounding  lands," 
and  would  seem,  therefore,  to  have  been 
admissible  as  part  of  the  return,  which 
expressly  referred  to  them  ;  but  no  final 
decision  was  had  u])on  the  point,  the  suit 
having  been  comiiromisod.  In  Buchanan 
V.  Moore,  10  S.  &  U.  275,  the  point  was, 
wliether  traditionary  evidence  was  ad- 
missible while  the  declarant  was  livimj. 
By  the  Roman  law,  traditionary  evid- 
ence of  common  fame  seems  to  have  been 
deemed  admissible,  even  in  matters  of  pri- 
vate boundary.  Mascard.  De  Probat.  vol. 
1,  p.  3'Jl,  Concl.  3%. 


CHAP.  VII.]  OF   ANCIENT   POSSESSIONS.  1G9 

from  particular  and  direct  interest  at  the  time,  and  are  since 


deceased.^ 

§  146.  In  this  connection  may  be  mentioned  the  sulyect  of 
perambulations.  The  writ  de  perambulatione  faciendd  lies  at  com- 
mon law,  when  two  lords  are  in  doubt  as  to  the  limits  of  their 
lordships,  villas,  <fcc.,  and  by  consent  ap})ear  in  chancery,  and  agree 
that  a  perambulation  be  made  between  them.  Their  consent 
being  enrolled  in  chancery,  a  writ  is  directed  to  the  sheriff  to 
make  the  perainlnilation,  by  the  oaths  of  a  jury  of  twelve  knights, 
and  to  set  up  the  bounds  and  limits,  m  certainty,  between  the 
parties.^  These  proceedings  and  tlie  return  are  evidence  against 
the  parties  and  all  others  in  privity  with  them,  on  grounds  here- 
after to  be  considered.  But  the  perambulation  consists  not  only 
of  this  higher  written  evidence,  but  also  of  the  acts  of  the  persons 
making  it,  and  their  assistants,  such  as  marking  boundaries, 
setting  up  monuments,  and  the  like,  including  their  declarations 
respecting  such  acts,  made  during  the  transactions.  Evidence 
of  what  these  persons  were  heard  to  say  upon  such  occasions  is 
always  received ;  not,  however,  as  hearsay,  and  under  any  sup- 
posed exception  in  favor  of  questions  of  ancient  boundary,  but  as 
part  of  the  res  gestce,  and  explanatory  of  the  acts  themselves,  done 
in  the  course  of  the  ambit.^  Indeed,  in  the  case  of  such  extensive 
domains  as  lordships,  they  being  matters  of  general  interest,  tradi- 
tionary evidence  of  connuon  fame  seems  also  admissible  on  the 
other  grounds,  which  have  been  previously  discussed.^ 
* 

1  Supra,  §§  128,  129,  130, 135, 136, 137.     iel  v.  Wilkin,   12  EngUsh   Law   &  Eq. 
It  is  held  in  AV-w  York,  that  in  ascertain-     547.] 

ing  facts,  relative  to  the  possession  of,  and  "-  5  Cora.  Dig.  732,  Pleader,  3  G.  ;  F. 
title  to,  lands,  which  occurred  more  than  a  N.  B.  [133]  D. ;  1  Story  on  Eq.  Jurisp. 
century  before  the  time  of  trial,  evidence  §  611.  See  also  St.  13  G.  3,  c.  81,  §  14; 
is  adniissible  which,  in  regard  to  recent  St.  41  G.  3,  c.  81,  §  14 ;  St.  58  G.  3,  c.  45, 
events,  could  not   be   received  ;   sucii  as     §  16. 

histories  of  established  credit,  as  to  public         ^  Weeks  v.  Sparke,  1  M.  &  S.  687,  per 
transactions  ;  the  recitals  in  public  records,     Ld.  Ellenborough  ;  supra,  §  108 ;  Ellicott 
statutes,  legislative  journals,  and  ancient     v.  Pearl,  1  McLean,  2ll. 
grants  and  charters  ;  judicial  records  ;  an-         *  Supra,  ^  128-137.     The  writ  de  per- 
cient  maps,  and  depositions,  and  the  like,     amkilatione  faciendd  is  not  known  to  have 

i'But  it  is  admitted  that  this  evidence  is  been  adopted  in  practice,  in  the  United 
always  to  be  received  with  great  caution,  States ;  but  in  several  of  the  states,  reme- 
and  with  due  allowance  for  its  impertec-  dies  somewhat  similar  in  principle  have 
■  tion,  and  its  capability  of  misleading.  Bo-  been  provided  by  statutes.  In  some  of  the 
jigardus  i\  Trinity  Church,  Kinney's  Law  states,  provision  is  only  made  for  a  periodi- 
jCompend,  for  1850,  p.  l.')',i.  [See  also  as  to  cal  perambulation  of  the  boundaries  of 
the  admissibility  of  angeiit  maps  and  sur-  towns  bv  tiie  selectmen  ;  LL.  Maine, 
veys,  Koss  c.  Rhoads,  15  I'eim.  St.  R.  163 ;  Rev.  1840,  ch.  5;  LL.  N.  Hamp.  1842,  ch. 
Penny  Pot  Landing  r.  Philadelphia,  16  lb.  37;  Mass.  Rev.  Stats,  ch.  15;  LL.  Con- 
79  ;  Whiteliouse  i:  Bickford,  9  Foster,  necticut.  Rev.  1849,  tit.  3,  ch.  7  ;  or,  for  a 
471;  Adams  t'.  Stanyan,  4  lb.  405;  l)an-    definite   settlement  of   controversies    re- 

VOL.  I.  15 


170 


LAW   OF   EVIDENCE. 


[part  II. 


specting:  them,  by  the  public  surveyor,  as 
in  New  York,  Kev.  Code,  Part  I.  oh.  8, 
tit.  0.  In  others,  the  remedy  is  extended 
to  the  boundaries  of  private  estates.  See 
Elmer's  Digest,  pp.  98,  yj,  315,  316 ;  New 
Jersey,  Kev.  St.  1846,  tit.  22,  ch.  12;  Vir- 
ginia, llev.  Code,  1819,  vol.  1,  pp.   358, 


350.  A  very  complete  summary  remedy, 
in  all  cases  of  disputed  houndary,  is  pro- 
vided in  the  statutes  of  Delaware,  lie^i- 
sion  of  1829,  pp.  80,  81,  tit.  Boundaries, 
III.  To  perambulations  niade  under  any 
of  these  statutes,  the  princii)les  stated  in 
the  text,  it  is  conceived,  will  apply. 


CHAl'.  VIII.]         OP   DECLARATIONS   AGAINST   INTEREST.  171 


CHAPTER   VIII. 

OF   DECLARATIONS   AGAINST   INTEREST. 

[*  §  147.  Declarations  against  the  interest  of  the  person  making  them  how  regarded, 
inter  alios. 

148.  The  interest  of  the  party,  his  means  of  knowledge,  and  the  want  of  motive 

to  misrepresent,  allurd  the  guaranty  of  truth. 

149.  All  cases  do  not  requu-e  the  declaration  to  be  against  interest ;  but  that  is  the 

general  rule. 

150.  The  rule  includes  written  entries,  even  in  private  books,  affecting  questions 

involving  the  rights  of  tliird  parties. 

151.  Entries  received  where  countervailed  by  credits. 

152.  So  also  where  the  pai'ticular  portion  not  against  the  interest  of  person  mak- 

ing it. 

153.  Not  requisite  the  party  could  be  a  witness  himself,  or  made  on  personal 

knowledge,  or  no  other  testimony. 

154.  "What  proof  of  the  character  in  which  the  party  acted  is  required. 

155.  Entries  in  parish  books,  as  to  ecclesiastical  dues.] 

§  147.  A  THIRD  exception  to  the  rule,  rejecting  hearsay  evidence, 
is  allowed  in  the  case  of  declarations  and  entries  made  hy  persons 
since  deceased,  and  against  the  interest  of  the  persons  making  them, 
at  the  time  when  they  were  made.  We  have  already  seen,^  that 
declarations  of  third  persons,  admitted  in  evidence,  are  of  two 
classes ;  one  of  which  consists  of  written  entries,  made  in  the 
course  of  official  duty,  or  of  professional  employment ;  where  the 
entry  is  one  of  a  number  of  facts,  which  are  ordinary  and  usually 
connected  with  each  other,  so  that  the  proof  of  one  afifords  a  pre- 
sumption that  the  others  have  taken  place ;  and,  therefore,  a  fair 
and  regidar  entry,  such  as  usually  accompanies  facts  similar  to 
those  of  which  it  speaks,  and  apparently  contemporaneous  with 
them,  is  received  as  original  presumptive  evidence  of  those  facts. 
And,  the  entry  itself  being  original  evidence,  it  is  of  no  impor- 
tance, as  regards  its  admissibility,  whether  the  person  making  it 
be  yet  living  or  dead.  But  declarations  of  the  other  class,  of 
which  we  are  now  to  speak,  are  secondary  evidence,  and  are  received 
only  in  consequence  of  the  death  of  the  person  making  them. 
This  class  embraces  not  only  entries  in  books,  but  all  other  dec- 

1  Supra,  §§  115,  116,  and  cases  there  cited. 


172  LAW   OF  E\1DENCE.  [PART   II. 

larations  or  statements  of  facts,  whether  verbal  or  in  writing,  and 
whether  they  were  made  at  the  time  of  the  fact  declared  or  at  a 
subsequent  day.^  But,  to  render  them  admissible,  it  must  appear 
tluit  the  declarant  is  deceased;  that  he  possessed  competent 
knowledge  of  tlie  facts,  or  that  it  was  his  duty  to  know  them ; 
and  that  the  declarations  were  at  variance  wilh  his  interest.^ 
When  these  circumstances  concur,  the  evidence  is  received,  leav- 
ing its  weight  and  value  to  be  determined  by  other  considerations. 
§  148.  The  ground  upon  which  this  evidence  is  received,  J^ 
the  extreme'itii /"•<>!, fi/i// it//  nf  'It's  hi/s.Jmud.  The  regard  which  men 
usually  pay  to  tlicir  own  intcrcsL  is  deemed  a  sufficient  security, 
both  that  the  declarations  were  not  made  under  any  mistake  of 
fact,  or  want  of  information  on  the  part  of  the  declarant,  if  he 
had  the  requisite  means  of  knowledge,  and  that  the  matter  de- 
clared is  true.  The  apprehension  of  fraud  in  the  statement  is 
rendered  still  more  improbable  from  the  circumstance,  that  it  is 
not  receivable  in  evidence  until  after  the  death  of  the  declarant ; 
and  that  it  is  always  competent  for  the  party,  against  whom  such 
declarations  are  adduced,  to  point  out  any  sinister  motive  for 
making  them.  It  is  true,  that  the  ordinary  and  highest  tests  of 
the  fidelity,  accuracy,  and  completeness  of  judicial  evidence  are 

1  Ivat  V.  Finch,  1  Taunt.  141 ;  Doe  v.  cicnt.  The  Sussex  Peerage  Case,  11 
Jones,  1  Campb.  31J7  ;  Davics  v.  Tierce,  2  Clark  &  Fin.  85.  In  Ilolladay  v.  Little- 
T.  R.'  53,  and  Ilolloway  v.  Kaikes,  there  page,  2  Munf.  31G,  tlie  joint  declarations 
cited  •  Doe  v.  Williams,  Cowp.  G2I ;  of  a  deceased  shipmaster,  and  the  living 
Peaceable  v.  Watson,  4  Taunt.  IG  ;  Stan-  owner,  that  the  defendant's  passage-money 
ley  y.  White,  14  East,  332,  341,  per  Ld.  had  been  paid  by  the  plaintiff,  were  held 
EUenborough  ;  Haddow  v.  Parry,  3  Taunt,  admissible,  as  parts  of  the  res  c/esta,  being 
303  ;  Goss  v.  Watlington,  3  Brod.  &  Bing. 
132  ;  Strode  v.  Winchester,  1  Dick.  397  ; 
Barker  v.  liay,  2  Russ.  G3,  7G,  and  cases 

in  p.  67,  note;    Warren  v.    Greenville,  2  by,  11  Johns.  70,  where  a  receipt  of  pay- 

Stra.  1129  ;  2  Burr.  1071,  1072,  s.  c. ;  Doe  nient  of  a  judgment  recovered  by  a  third 

V.  Turford'  3  B.  &  Ad.  898,  per  Parke,  J. ;  person  against  the  defendant  was  held  ad- 

liarrison  v.  Blades,  3  Campb.  457  ;  Man-  missible  in  an  action  lor  the  money  so  paid, 

ning  V.  Leachmere,  1  Atk.  453.  by  the   party  ))aying   it,  he   having   had 

2  Short  V.  Lee,  2  Jac.  &  Walk.  464,  authority  to  (/i-//(/.s^  the  demand,  and  the 
488  per  Sir  Thomas  Plumer,  M.  R. ;  Doe  receipt  beiilfe  a  documentary  fact  in  the 
V.  Robson,  15  East,  32,  34;  Iligham  v.  adjustment;  though  the  attorney  who 
Ridgway,  10  East,  109,  per  Ld.  Ellen-  signed  the  receipt  was  not  produced,  nor 
borough  ;  Middleton  v.  Melton,  10  B.  &  C.  proved  to  be  dead.  In  auditing  the  ac- 
317,  327,  per  Parke,  J. ;  Regina  r.  Worth,  coimts  of  guardians,  administrators,  &c., 
4  Ad.  &VA.  N.  s.  137,  per  Ld.  Denman  ;  the  course  is,  to  admit  receipts  as  pi-iind 
2  Smith's  Leading  Cases,  193,  note,  and  /<irif  sufhcient  vouchers.  Shearman  v. 
cases  there  cited ;  Spargo  v.  Brown,  9  Akins,  4  Pick.  283 ;  Nichols  v.  Webb,  8 
B.  &  C.  935.  The  interest,  with  which  Wheat.  32G  ;  Welsh  v.  Barrett,  15  Mass. 
the  declarations  were  at  variance,  must  be  380  ;  Wilbur  v.  Selden,  6  Cowen,  162  ; 
of  a  pecuniun/  nature.  Davis  v.  Lloyd,  1  Farmers  Bank  v.  Whitehill,  16  S.  &  R. 
Car.  &  P.  276.  The  apprehension  of  pos-  89,  90;  Stokes  v.  Stokes,  6  Martin,  n.  8. 
sible  danger  of  a  prosecution  is  not  suffi-  351. 


ontemporaneous  with  the  time  of  sailing. 
This  case,  therefore,  is  not  opposeil  to  the 
Bai-icer  i?"  Ray,  2  Russ.  63,  76,  and  cases     others  cited.    Neither  is  Sherman  v.  Cros- 


CHAP,  VIII.]  OF    DECLARATION'S    AGAINST    INTEREST.  173 

here  wanting;  but  their  place  is,  in  some  measure,  supplied  by 
the  circumstances  of  the  declarant ;  and  the  iiiconveniences  result- 
ing from  the  exclusion  of  evidence,  having  such  guaranties  for  its 
accuracy  in  fact,  and  from  its  freedom  from  fraud,  are  deemed 
much  greater,  in  general,  than  any  which  would  probably  be 
experienced  from  its  admission.^ 

§  149.  In  some  cases,  the  courts  seem  to  have  admitted  this  evi- 
dence, without  requiring  jrroof  of  adverse  interest  in  the  declarant ; 
while  in  others  stress  is  laid  on  the  fact,  that  such  interest  had 
already  appeared,  aliunde^  in  the  course  of  the  trial.  In  one  case 
it  was  argued,  upon  the  authorities  cited,  that  it  was  not  material 
that  the  declarant  ever  had  any  actual  interest,  contrary  to  his 
declaration  ;  biit  this  position  was  not  sustained  by  the  court.- 
In  many  other  cases,  where  the  evidence  consisted  of  entries  in 
books  of  account,  and  the  liiic,  they  seem  to  have  been  clearly 
admissible  as  entries  made  in  the  ordinary  course  of  business  or 
duty,  or  parts  of  the  res  gesttv,  and  therefore  as  original,  and  not 
secondary  evidence  ;  though  the  fact,  that  they  were  made  against 
the  interest  of  the  person  making  them,  was  also  adverted  to.'^ 
But  in  regard  to  declarations  in  general,  not  being  entries  or  acts 
of  the  last-mentioned  character,  and  which  are  admissible  only  on 
the  ground  of  having  been  made  contrary  to  the  interest  of  the 
declarant,  the  weight  of  authority,  as  well  as  the  principle  of 
the  exception  we  are  considering,  seem  plainly  to  require  that 
such  adverse  interest  should  appear,  either  in  the  nature  of  the 
case,  or  from  extraneous  proof. **     And  it  seems  not  to  be  suffi- 


1  Phil.  &  Am.  on  Evid.  307,  308 ;    1  casion  to   express  my  opinion  jnilicially 

Phil    Evid.  '2'M,   294;    Greslej'  on  Evid.  ujxjn  it,  1  will  do  so  ;   hut  I  dosire  not  to 

221  ;    [Bird    v.   Hueston,   10   Clnitchfield  be  considered  as  bounil  by  tliat,  as  a  rule 

(Uhio),  418.]  of  evidence."    The  objection  arising  fronj 

■^  Barker  v.  Ray,  2  Russ.  .63,  67,  68,  the  rejection  of  sucli  evidence  in  tlie  case 
cases  cited  in  note  ;  Id.  p.  76.  Upon  this  was  disposed  of  in  another  manner, 
point,  Eldon,  Lord  Chancellor,  said: —  *  It  has  been  qnestionetl,  whether  there 
"  The  cases  satisfy  me,  tliat  evidence  is  is  any  ditlerence  in  the  jirincipie  of  ad- 
admissible  of  declarations  made  by  per-  missii)ility  between  a  written  entry  and 
sons  who  have  a  competent  knowledge  of  an  oral  declaration  of  an  auent,  concerti- 
the  subject  to  which  such  declarations  re-  inij  his  liaving  received  money  for  his 
fer,  and  where  their  interest  is  concerned;  principal.  Sec  siijira,  §113,  note;  Enrs- 
and  the  only  doui)t  I  Iiave  entertained  don  v.  Cloirtr,  10  M.  &  W.  572;  Infra, 
was  as  to  the  position,  tliat  you  are  to  re-  §  l'>2.  note. 

ceive  evidence  of  declarati(ms  where  there  *  lliuham  r.  Ridsiway.  10  East,  109; 
is  no  interest.  At  a  certain  period  of  my  Warren  v.  Greenville,  2  Stra.  112lt;  ex- 
professional  life,  I  should  have  said  that  poimded  by  Lord  Mansfield,  in  2  Burr. 
this  doctrine  was  quite  new  to  me.  I  do  1071,  1072;  Gleadow  v.  Atkin,  3  Tyrwh. 
not  mean  to  say  more  than  that  I  still  302,  303 ;  1  Cromp.  &  Mees.  423,"  424  ; 
doubt  concerning  it.     When  I  liave  oc-  Short  v.  Lee,  2  Jac.  &  W.  4^'J ;   Marks  v. 

15* 


174 


LAW    OF  EVIDENCE. 


[part  II. 


cient  that,  in  one  or  more  points  of  view,  a  declaration  may  l>e 
against  interest,  if  it  appears,  upon  the  whole,  that  the  interest 
of  the  declarant  would  be  rather  promoted  than  im})aired  l)y  the 
declaration.^ 

§  150.  Though  the  exception  we  are  now  considering  is,  as  we 
have  just  seen,  extended  to  declarations  of  any  kind,  yet  it  is  much 
more  frequently  exemplified  in  documcutary  evidence,  and  particu- 
larly in  entries  in  books  of  account.  AVhere  these  are  books  of 
collectors  of  taxes,  stewards,  bailiffs,  or  receivers,  subject  to  the 
inspection  of  others,  and  in  which  the  first  entry  is  generally  of 
money  received,  charging  the  party  making  it,  they  are,  doubt- 
less, within  the  principle  of  the  exception.^  But  it  has  been 
extended  still  farther,  to  include  entries  in  private  hooks  also, 
though  retained  within  the  custody  of  their  owners ;  their  liability 
to  be  produced  on  notice,  in  trials,  being  deemed  sufficient  security 
against  fraud  ;  and  the  entry  not  being  admissible,  unless  it  charges 
the  party  making  it  with  the  receipt  of  money  on  account  of  a  third 
person,  or  acknoivledges  the  payment  of  money  due  to  himself;  in 
either  of  which  cases  it  would  be  evidence  against  him,  and  there- 
fore is  considered  as  sufficiently  against  his  interest  to  bring  it 
within  this  exception.^  The  entry  of  a  mere  memorandum  of  an 
agreement  is  not  sufficient.     Thus,  where  the  settlement  of  a  pau- 


Lalicc,  3  Bing.  n.  c.  408,  420,  per  Parke, 
J. ;  Barker  v.  Ray,  2  Russ.  63,  76;  supra, 
§  147,  and  cases  in  notes. 

1  riiil.  &  Am.  on  Evid.  320 ;  1  Phil. 
Evid.  305,  306 ;  Short  v.  Lee,  2  Jac.  &  W. 
464. 

2  Barry  v.  Bebbington,  4  T.  R.  514; 
Goss  V.  Watlington,  3  Brod.  &  Bing.  132; 
Middlcton  v.  Melton,  10  B.  &  C.  317;  Stead 
V.  Meaton,  4  T.  R.  IIG'J ;  Sliort  v.  Lee,  2 
Jac.  &  W.  464  ;  Wliitmarsh  v.  George,  8 
B.  &  C.  550 ;  Dean,  &c.  of  Ely  v.  Calde- 
cott,  7  Bini,'.  4?.3:  Marks  v.  Lahee,  3  Bing. 
N.  c.  408;  Wynne  i:  Tyrwhitt,  4  B.  & 
Aid.  376 ;  De  Rutzen  v.  Farr,  4  Ad.  &  El. 
62 ;  2  Smith's  Leading  Cas.  103,  note ; 
Plaxton  V.  Dare,  10  B.  &  C.  17,  10 ;  Doe 
V.  Cartwright,  Ry.  &  M.  62.  An  entry  by 
a  steward  in  his  books,  in  his  own  favor, 
unconnected  with  other  entries  against 
liim,  is  held  not  admissible  to  jirove  the 
facts  stated  in  such  entry.  Kniglit  ;;. 
Marq.  of  Waterford,  4  Y.  &  C.  284.  But 
where  the  entry  goes  to  show  a  general 
balance  in  his  own  favor,  it  has  been  ruled 
not  to  affect  the  admissibility  of  a  particu- 
lar entry  charging  himself.     Williams  v. 


Geaves,  8  C.  &  P.  602.  And  see  Mus- 
grave  v.  Emerson,  16  Law  .Tourn.  174, 
Q.  B.  [An  ancient  book,  kept  among 
the  records  of  a  town,  jiurporting  to  be  the 
"  Selectmen's  book  of  accounts  with  the 
ti-easury  of  the  town,"  is  admissible  in 
evidence  of  the  fiicts  therein  stated  ;  and, 
the  selectmen  being  at  the  same  time  as- 
sessors, an  entry  in  such  book  of  a  credit 
by  an  order  in  tavor  of  the  collector  for  a 
discount  of  a  particular  individual's  taxes 
was  held  to  be  evidence  of  the  abatement 
of  the  tax  of  such  individual.  Boston  v. 
Weymouth,  4  Cush.  GixS.) 

='■  Warren  o.  (Jreenville,  2  Stra.  1029; 
2  Burr.  1071,  1072,  s.  c.  ;  Higham  v. 
Ridgway,  10  East,  109 ;  Middleton  v.  Mel- 
t(m,  10  Barn.  &  Cress.  317.  In  those 
states  of  the  Union  in  which  the  original 
entries  of  tlie  party,  in  his  own  account 
books,  may  be  evidence  for  him,  and 
where,  therefore,  a  false  entry  may  some- 
times amount  to  the  crime  of  forgery, 
there  is  much  stronger  reason  for  admit- 
ting the  entries  in  evidence  against  third 
persons.  See  also  Iloare  v.  Coryton,  4 
Taunt.  560. 


CHAP.  VIII.]  OF   DECLARATIONS   AGAINST   INTEREST. 


175 


per  was  attempted  to  be  proved  by  showing  a  contract  of  hiring 
and  service  ;  the  books  of  liis  deceased  master,  containing  minutes 
of  his  contracts  with  his  servants,  entered  at  the  time  of  contract- 
ing with  them,  and  of  subsequent  payments  of  their  wages,  were 
hehi  inadmissible  ;  for  the  entries  were  not  made  against  the  wri- 
ter's interest,  for  he  woukl  not  be  Hablc  unless  the  service  were 
l)erformcd,  nor  were  they  made  in  the  course  of  his  duty  Or 
employment,^ 

§  151.  Where  the  entry  is  itself  the  only  evidence  of  the  charge, 
of  which  it  shows  the  subsequent  liquidation,  its  admission  has 
been  strongly  opposed,  on  the  ground,  that,  taken  together,  it  is 
no  longer  a  declaration  of  the  party  against  his  interest,  and  may 
be  a  declaration  ultimately  in  his  own  favor.  This  point  was* 
raised  in  the  cases  of  Higham  v.  Bidgway,  where  an  entry  was 
simply  marked  as  paid,  in  the  margin ;  and  of  Rowe  v.  Brenton, 
which  was  a  debtor  and  creditor  account,  in  a  toller's  books, 
of  the  money  received  for  tolls,  and  paid  over.  But  in  neither  of 
these  cases  was  the  objection  sustained.  In  the  former,  indeed, 
there  was  evidence  aliunde,  that  the  service  charged  had  been 
performed;  but  Lord  Ellenborough,  though  he  afterwards  ad- 
verted to  this  fact,  as  a  corroborating  circumstance,  first  laid 
down  the  general  doctrine,  that  "  the  evidence  was  properly  ad- 
mitted, upon  the  broad  principle  on  which  receivers'  books  have 
been  admitted."  But  in  the  latter  case  there  was  no  such  proof; 
and  Lord  Tenterden  observed,  that  almost  all  the  accounts  wdiich 
were  produced  were  accounts  on  both  sides ;  and  that  the  objec- 
tion would  go  to  the  very  root  of  that  sort  of  evidence.  Upon 
these  authorities,  the  admissibility  of  such  entries  may  perhaps  be 
considered  as  established.^  And  it  is  observable,  in  corroboration 
of  their  admissibility,  that  in  most,  if  not  all  of  the  cases,  they 
appear  to  have  been  made  in  the  ordinary  course  of  business  or 
of  duty,  and  therefore  were  parts  of  the  res  gestce.^ 


lA' 


1  Eegina  v.  Worth.  4  Ad.  &  El.  n.  s. 
132. 

2  Higham  v.  Ridgway,  10  East.  109; 
Rowe  V.  Brenton,  3  Man.  &  R.  2(J7  ;  2 
Smith's  Leading  Cas.  196,  note.  In  Wil- 
liams V.  Geaves,  8  C.  &  P.  592,  the  entries 
in  a  deceased  steward's  account  were  ad- 
mitted,'though  the  halance  of  tlie  account 
was  in  his  favor.  See  also  Doe  v.  Tyler, 
4  M.  &  P.  377,  there  cited.  Doe  v.  Whi^ 
comb,  15  Jur.  778. 


3  In  Dowe  v.  Vowles,  1  M.  &  Rob.  261, ! 
the  evidence  offered  was  merely  a  trades- 
man's bill,  receipted  in  full ;  which  was 
properly  rejected  by  Littledale,  J.,  as  it 
liad  not  the  merit  of  an  original  entry;  for 
though  the  receipt  of  payment  was  against 
the  party's  interest,  yettlie  main  fact  lo- 
be established  was  the  performance  of  the  ' 
services  charged  in  the  bill,  the  appear- 
ance of  which  denoted  tluit  better  evi- 
dence existed,  in  the  original  entry  in  the 


lA 


176  LAW   OF    EVIDENCE.  [PART   II. 

§  152.  It  has  also  been  qiicstioucd,  whether  the  entry  is  to  be 
received  in  evidence  of  matters,  which,  though  forming  part  of  the 
declaration,  were  not  in  themselves  against  the  interest  of  the  declar- 
ant. This  objection  goes  not  only  to  collateral  and  independent 
facts,  but  to  the  class  of  entries  mentioned  in  the  preceding 
section  ;  and  would  seem  to  be  overruled  by  those  decisions.  But 
the  point  was  solemnly  argued  in  a  later  case,  where  it  was 
adjudged,  that  though,  if  the  point  were  now  for  the  first  time 
to  be  decided,  it  would  seem  more  reasonable  to  hold,  that  the 
memorandum  of  a  receipt  of  payment  was  admissible  only  to 
the  extent  of  proving  that  a  payment  had  been  made,  and  the 
account  on  which  it  had  been  made,  giving  it  the  effect  only  of 
verbal  proof  of  the  same  payment;  yet,  that  the  authorities  had 
gone  beyond  that  limit,  and  the  entry  of  a  payment  against  the 
interest  of  the  party  making  it  had  been  held  to  have  the  effect 
of  proving  the  truth  of  other  statements  contained  in  the  same 
entry,  and  connected  with  it.  Accordingly,  in  that  case,  where 
three  persons  made  a  joint  and  several  promissory  note,  and 
a  partial  payment  was  made  by  one,  which  was  indorsed  upon  the 
note  in  these  terms:  "Received  of  W.  D.  the  sum  of  £280,  on 
account  of  the  within  note,  the  <£300"  (which  was  the  amount 
of  the  note)  '■'■having  been  originaUy  advanced  to  E.  ^,"  —  for 
which  payment  an  action  was  brought  by  the  party  paying,  as 
surety,  against  E.  H.,  as  the  principal  debtor;  it  was  held,  upon 
the  authority  of  Higham  v.  Ridgway,  and  of  Doe  v.  Mobson,  that 
the  indorsement,  the  creditor  being  dead,  was  admissible  in  evi- 
dence of  the  whole  statement  contained  in  it ;  and  consequently, 
that  it  was  primd  facie  proof,  not  only  of  the  payment  of  the 
money,  but  of  the  person  who  was  the  principal  debtor,  for  whose 
account  it  was  paid ;  leaving  its  effect  to  be  determined  by  the 

jiity-^ 

tradesman's  book.     The  same  objection,  for  the  purpose  of  getting  a^ischarge."! 

indcorl,  was  taken  bore,  by  the  learned  See  a\so  infra,  §  152^  '  f 

counsel  for  the  defendant,  as  in  the  cases  i  Davies  v.   Humphreys,    6    Mees.   & 

of  Higham  r.  liidirwa}',  an<l  of  Howe  v.  Welsh.  158,  166.     See  also  Stead  v.  Hca- 

Brenton,  namely,  that  the  proof,  as  to  in-  ton,  4  T.   li.  669 ;    Roe  v.   Ilawlings,   7 

terest,  was  on  both  sides,  and  neutralized  East,  279 ;    Marks  v.  Lahee,  3  Bing.  n.  c. 

itself;  but  the  olijeetion  was  not  particu-  408.     The  case  of  Chambers  v.   liernas- 

larly  noticed  i)y  Littk'dale,  J.,  before  whom  coni,   1   Cr.   &  Jer.  451,   1   Tyrwh.   335, 

it  was   tried;    thoufrh    the    same    learned  which  may  seem  ojjpo.sed  to  these  decis- 

judge  afterward  intimated  his  oiiinion,  by  ions,  turned  on  a  dilierent  principle.'   That 

observing,  in  rejjly  to  an  olijection  simi-  case   involved   the    effect    of   an    under- 

lar  in  princi])le,  in  Rowe  v.  Brenton,  that  sheriff's  return,  and  the  extent  of  the  cir- 

"a  man  is  not  likely  to  charge  himself,  cumstances   whieli    the    sheriff's    retm^n 


CHAP.  VIII.]  OF   DECLARATIONS    AGAINST    INTEREST.  177 

§  153.  In  order  to  render  declarations  against  interest  admissible, 
it  is  not  necessary  that  the  declarant  should  have  been  competent,  if 
living,  to  testify  to  the  facts  contained  in  the  declaration ;  the 
evidence  being  admitted  on  the  broad  ground,  that  the  declaration 
was  against  the  interest  of  the  party  making  it,  in  the  nature  of 
a  confession,  and,  on  that  account,  so  probably  true  as  to  justify 
its  reception.^  For  the  same  reason  it  does  not  seem  necessary 
that  the  fact  should  have  been  stated  on  the  personal  knowledge 
of  the  declarant.^  Neither  is  it  material  whether  the  same  fact 
is  or  is  not  provable  by  other  witnesses  who  are  still  living.^ 
Whether  their  testimony,  if  produced,  might  be  more  satisfactory, 
or  its  non-production,  if  attainable,  might  go  to  diminish  the 
weight  of  the  declarations,  are  considerations  for  the  jury,  and  do 
not  affect  the  rule  of  law. 

§  154.  But  where  the  evidence  consists  of  entries  made  by 
pereons  acting  for  others,  in  the  capacity  of  agents,  stewards,  or 
receivers,  some  proof  of  such  agency  is  generally  required,  pre- 
vious to  their  admission.  The  handwriting,  after  thirty  yjars,^ 
need  not  be  proved.^  In  regard  to  the  proof  of  official. character, 
a  distinction  has  been  taken  between  public  and  private  offices,  to 
the  effect,  that  where  the  office  is  public  and  must  exist,  it  may 

ought  to  include,  and  as  to  which  it  would  declaration  of  a  deceased  agent  or  officer, 
be  conclusive  evidence.  It  seems  to  have  made  while  he  was  paying  over  money  to 
been  considered,  that  the  return  could  his  principal  or  superior,  and  desigjiating 
properly  narrate  only  those  things  which  the  person  fi'om  whom  he  received  a  par- 
it  was  the  officer's  duty  to  do ;  and,  there-  ticular  sum  entered  by  him  in  his  books, 
fore,  though  evidence  of  the  fact  of  the  is  admissible  in  evidence  against  that  per- 
ari-est,  it  was  held  to  be  no  evidence  of  son,  qucere ;  and  see  Fursdon  v.  Clogg,  10 
the  place  where  the  arrest  was  made,  M.  &  W.  572.  The  true  distinction,  more 
tliough  this  was  stated  in  the  return.  Tlie  recently  taken,  is  this  :  that  where  the 
learned  counsel  also  endeavored  to  main-  entry  is  admitted  as  being  against  the  in- 
tain  the  admissibility  of  the  under-sheriff's  terest  of  the  party  making  it,  it  carries 
return,  in  proof  of  the  place  of  arrest,  as  a  with  it  the  whole  statement ;  but  that 
written  declaration,  by  a  deceased  person,  wliere  it  was  made  merely  in  the  course 
of  a  fact  against  his  interest ;  but  the  court  of  a  man's  duty,  it  does  not  go  beyond  the 
held  that  it  did  not  belong  to  that  class  of  matters  which  it  was  his  duty  to  enter, 
cases.  1  Tj-rwh.  333,  per  Bayley,  B.  Percival  v.  Nanson,  7  Eng.  Law  &  Eq.  R. 
Afterwards,  this  judgment  was  affirmed  538,  per  Pollock,  C.  B. ;  7  Exch.  Eep.  1, 
in  the   Exchequer   Chamber,  4   Tyrwh.  s.  c. 

631 ;  1  Cr.  Mees.  &  Ros.  347,  868  ;   the         i  Doe  v.  Eobson,  15  East,  32  ;  Short  v. 

court  being  "  all  of  opinion,  that  whatever  Lee,    2   Jac.    &  W.    464,    489 ;    Gleadow 

effect  may  be  due  to  an  entry,  made  in  the  v.  Atkin,  1  Cr.  &  Mees.  410 ;  Middleton  v. 

course  of  any  office,  reporting  liicts  neces-  Melton,  10  B.  &  C.  317,  326  ;  Bosworth 

sary  to  the  performance  of  a  duty,  the  v.  Crotchet,  Ph.  &  Am.  on  Evid.  348,  n. 
statement  of  other  circumstances,  however         ^  Crease  v.  Barrett,  1  Cr.  Mees.  &  R. 

naturally  they  may  be  thought  to  find  a  919. 

place  in  the  narrative,  is  no  proof  of  those  ^  Middleton  v.  Melton,  16  B.  &  C.  327, 

circumstances."     See  also   Thompson   v.  per  Parke,  J. ;  Barry  v.  Bebbington,  4  T. 

Stevens,  2  Nott  &  McC.  493;  Sherman  v.  R.  514. 
Crosby,  11  Johns.  70.     Whether  a  verbal         *  Wynne  v.  Tyrwhitt,  4  B.  &  Aid.  376, 


178  LAW    OF    EVIDENCE.  [pART    II. 

always  be  presumed  that  a  person  who  acts  in  it  has  been  regu- 
hirly  appointed ;  but  that  where  it  is  merely  private,  some  pre- 
liminary evidence  must  be  adduced  of  the  existence  of  the  oflfice, 
and  of  the  apix)intment  of  the  agent  or  incumbent.^  Where  the 
entry,  by  an  agent,  charges  himself  in  the  first  instance,  that  fact 
has  been  deemed  sufficient  proof  of  his  agency  ;2  but  where  it 
was  made  by  one  styling  himself  clerk  to  a  steward,  that  alone  was 
considered  not  sufficient  to  prove  the  receipt,  by  either  of  them, 
of  tli(!  money  therein  mentioned.^  Yet  where  ancient  books  con- 
tain strong  internal  evidence  of  their  actually  being  receivers'  or 
agents'  books,  they  may,  on  that  ground  alone,  be  submitted  to 
the  jury.*  Upon  the  general  question,  how  far  mere  antiquity 
in  the  entry  will  avail,  as  preliminary  proof  of  the  character  of 
the  declarant,  or  party  making  the  entry;  and  how  far  the  cir- 
cumstances, which  are  necessary  to  make  a  document  evidence, 
must  be  proved  aliunde,  and  cannot  be  gathered  from  the  docu- 
ment itself,  the  law  does  not  seem  perfectly  settled.-'^  But  where 
the  transaction  is  ancient,  and  the  document  charging  the  party 
with  the  Keceipt  of  money  is  apparently  genuine  and  fair,  and 
comes  from  the  proper  repository,  it  seems  admissible,  upon  the 
general  principles  already  discussed  in  treating  of  this  exception.'^ 
§  155.  There  is  another  class  of  entries  admissible  in  evidence, 
which  sometimes  has  been  regarded  as  anomalous,  and-  at  others 
has  been  deemed  to  fall  witliin  the  princii)le  of  the  present  excep- 
tion to  the  general  rule  ;   namely,  the  private  books  of  a  deceased 

1  Short  V.  Lee,  2  Jac.  &  W.  464,  468.  than   a  hundred  years   old.      Davies  v. 

2  Doe  t'.  SUicy,  6  Car.  &  P.  139.  JNIorgan,  1  Cr.  &  Jer.  587,  590,  5'..»3,  per 

3  l)e  Kutzen  v.  Farr,  4  Ad.  &  El.  53.  Ld.   I.yndhurst,  C.  B.     In  anotiicr  t-ase, 
And  see  Doe  r.  Wittcomb,  15  Jur.  778.  which  was  a  bill  for  tithes,  ajjainst  which 

*  Doe  V.  Ld.  Geo.  Thynne,  10  East,  206,  a  moihis  was  alletjcd  in  defence,  a  receipt 

210.  of  more  than  fifty  years  old  was  offered, 

^  In  one  case,  where  the  point  in  issue  to  prove  a  money  payment  tlierein  men- 
was  the  existence  of  a  custom  for  the  e.\-  tioned  to  have  been  received  for  a  pre- 
clusion of  foreijrn  cordwainers  from  a  cer-  scription  rent  in  lieu  of  tithes  ;  but  it  was 
tain  town ;  an  entry  in  the  corporation  held  inadmissible,  without  also  showing 
books,  signed  by  one  acknowlcdujinp:  him-  who  the  jiarties  were,  and  in  what  charac- 
self  not  a  freeman,  or  free  of  the  corpora-  tertliey  stood.  Manby  r.  Curtis,  1  Trice, 
lion,  and  promisinir  to  pay  a  fine  assessed  225,  jier  Tliompson,  C.  B.,  Craliam,  B., 
on  him  for  breach  of  tiie  custom;  and  and  IJichards,  B. ;  Wood,  B.,  dissentiente. 
another  entry,  signed  bv  two  others,  statin-;  '^  Sec.  Phil.  &  Am.  on  Evid.  331,  n.  (2) ; 
tiiat  they  had  distrained  and  api)rai.sed  1  Phil.  Evid.  316,  n.  (6).  and  cases  there 
nine  pairs  of  shoes  from  anotlier  person,  cited ;  Fenwick  v.  Bead,  6  Madd.  8,  per 
for  a  similar  ottence  ;  were  severally  held  Sir  J.  Leach,  Vice-Ch. ;  Bertie  v.  Beau- 
inadmissible,  witlioiit  previously  oiferins  mont,  2  Price,  307;  Bp.  of  Meath  v.  Mar- 
some  evidence  to  show  by  whom  the  en-  quis  of  Winchester,  3  Binj;.  n.  c.  183, 
tries  were  subscribed,  and  in  what  situa-  2(13;  [Doe  v.  Michael,  24  Eng.  Law  and 
tion  the  several  parties  actually  stood;  Eq.  11.  180. | 
although  the  latest  of  the  entries  was  more 


CHAP.  VIII.]  OF  DECLARATIONS   AGAINST   INTEREST.  179 

rector  or  vicar,  or  of  an  ecclesiastical  corporation  aggregate,  con- 
taining entries  of  the  receipt  of  ecclesiastical  dues,  when  admitted 
in  favor  of  their  successors,  or  of  parties  claiming  the  same  interest 
as  the  maker  of  the  entries.  Sir  Thomas  Plumer,  in  a  case  before 
hira,^  said :  "  It  is  admitted,  that  the  entries  of  a  rector  or  vicar 
are  evidence  for  or  against  his  successors.  It  is  too  late  to  argue 
upon  that  rule,  or  upon  what  gave  rise  to  it ;  whether  it  was  the 
cursus  jScaccarii,  the  protection  of  the  clergy,  or  the  peculiar 
nature  of  property  in  tithes.  It  is  now  the  settled  law  of  the  land. 
It  is  not  to  be  presumed  that  a  person,  having  a  temporary  interest 
only,  will  insert  a  falsehood  in  his  hook  from  which  he  can  derive^iio, 
advantage.  Lord  Kenyon  has  said,  that  the  rule  is  an  exception ; 
and  it  is  so ;  for  no  other  proprietor  can  make  evidence  for  those 
who  claim  under  him,  or  for  those  who  claim  in  the  same  right 
arid  stand  in  the  same  predicament.  But  it  has  been  the  settled 
law,  as  to  tithes,  as  far  back  as  our  research  can  reach.  We 
must,  therefore,  set  out  from  this  as  a  datum ;  and  we  must  not 
make  comparisons  between  this  and  other  corporations.  No  cor- 
poration sole,  except  a  rector  or  vicar,  can  make-  evidence  for  his 
successor."  But  the  strong  presumption  that  a  person,  ha\'ing 
a  temporary  interest  only,  will  not  insert  in  his  books  a  falsehood, 
from  which  he  can  derive  no  advantage,  which  evidently  and 
justly  had  so  much  weight  in  the  mind  of  that  learned  judge, 
would  seem  to  bring  these  books  within  the  principle  on  which 
entries,  made  either  in  the  course  of  duty,  or  against  interest,  are 
admitted.  And  it  has  been  accordingly  remarked,  by  a  writer  \ 
of  the  first  authority  in  this  branch  of  the  law,  that  after  it  has  ' 
been  determined  that  evidence  may  be  admitted  of  receipts  of  '. 
payment,  entered  in  private  books,  by  persons  who  are  neither 
obliged  to  keep  such  books,  nor  to  account  to  others  for  the  money 
received,  it  does  not  seem  any  infringement  of  principle  to  admit 
these  books  of  rectors  and  vicars.  For  the  entries  cannot  be  used 
by  those  who  made  them ;  and  there  is  no  legal  privity  between 
them  and  their  successors.  The  strong  leaning,  on  their  part,  in 
favor  of  the  church,  is  nothing  more,  in  legal  consideration,  than 
the  leaning  of  every  declarant  in  favor  of  his  own  interest,  affect- 
ing the  weight  of  the  evidence,  but  not  its  admissibility.  General 
observations  have  occasionally  been  made  respecting  these  books, 

1  Short  V.  Lee,  2  Jac.  &  W.  177,  178. 


ISO  LAW   OF   EVIDENCE.  [PART   II. 

"which  may  seem  to  authorize  the  admission  of  any  kind  of  state- 
ment contained  in  them.  But  such  books  are  not  admissible, 
except  where  the  entries  contain  receipts  of  money  or  ecclesias- 
tical dues,  or  are  otherwise  apparently  prejudicial  to  the  interests 
of  the  makers,  in  the  manner  in  whicli  entries  are  so  considered 
in  analogous  cases.^  And  proof  will  be  required,  as  in  other 
cases,  that  the  writer  had  authority  to  receive  the  money  stated, 
and  is  actually  dead;  and  that  the  document_came  out  of  the 
proper  custody.^ 

iPhil.  &  Am.  on  E^^d.  322,  323,  and         2  Qresley  on  Evid.  223,224;  Carringtou 

cases  in  notes  (2)  and  (3);  1  Phil.  Evid.  v.  Jones,"'2  Sim.  «&  Stu.  135,  140;  Perigal 

308,  notes.  (1),  (2) ;  Ward  v.  Pomfret,  5  v.  Nicholson,  1  Wightw.  63. 
Sim.  476. 


CHAP.  IX.]  OF  DYING  DECLARATIONS.  181 


CHAPTER    IX. 

OF   DYING   DECLARATIONS. 

[*  §  156.  Declarations  made  in  immediate  prospect  of  death  admissible,  oa  trials  for 
homicide. 

157.  The  person  must  have  been  competent  to  testify ;   but  being  an  accomplice 

will  not  exclude  the  declarations. 

158.  The  declarations  must  be  made  imder  the  apprehension  of  almost  immediate 

death. 

159.  Can  only  be  received  to  the  extent  the  person  might  have  testified,  and  must 

be  complete. 

160.  Competency  of  the  evidence  determined  by  court ;   its  weight  by  jm-y. 

161.  K  reduced  to  writing,  it  must  be  produced  if  j)ossible. 

161«.  But  if  resting  in  memory,  witness  may  testify  to  substance  of  declaration. 
1616.  The  declaration  may  be  by  signs  as  well  as  words.] 

§  156.  K  fourth  exception  to  the  rule,  rejecting  hearsay  evidence, 
is  allowed  in  the  case  of  dying  declarations.  The  general  principle, 
on  which  this  species  of  evidence  is  admitted,  was  stated  by  Lord 
Chief  Baron  Eyre  to  be  this,  —  that  they  are  declarations  made  in 
extremity,  when  the  party  is  at  the  point  of  death,  and  when 
every  hope  of  this  vs^orld  is  gone  ;  when  every  motive  to  falsehood 
is  silenced,  and  the  mind  is  induced,  by  the  most  powerful  con- 
siderations, to  speak  the  truth.  A  situation  so  solemn  and  so' 
awful  is  considered  by  the  law,  as  creating  an  obligation  equal  to 
that  which  is  imposed  by  a  positive  oath  in  a  court  of  justice.^ 
It  was  at  one  time  held,  by  respectable  authorities,  that  this 
general  principle  warranted  the  admission  of  dying  declarations 
in  all  cases,  civil  and  criminal;  but  it  is  now  well  settled  jthat 
they  are  admissible,  as  such,  only  in  cases  of  homicide,  "  where 
the" death  of  the  deceased  is  the  subject  of  the  "charge,  and  the 
circumstances  of  the  death  are  the  subject  of  the  dying  declara- 

1  Eex  V.  Woodcock,  2  Leach's  Cr.  Cas.  per  dicere  verum.    Mascard.  De  Probat. 

256,    567  ;    Drummond's  case,   1  Leach's  Concl.  1080.    In  the  earliest  reported  case 

Cr.   Cas.  378.     The  rule  of  the  Roman  on  this  subject,  the  evidence  was  admitted 

Civil   Law   was  the  same.     Morti  proxi-  without  objection,  and  apparently  on  this 

mum,  sive  moribundum,  non  prsesumen-  general  ground.     Eex  v.  Reason  et  ah,  6 

dum  est  mentiri,  nee   esse   immemorem  State  Tr.  195,  201.    The  rule  of  the  Com- 

salutis  asternae;  licet  non  prEesumatm- se?n-  mon  Law,  imder  wliich  this  evidence  is 
VOL.  I.                                                          16 


182 


LAW   OF   EVIDENCE. 


[part  II. 


ioiis."^     The  reasons  for  thus  restricting  it  may  be,  tliat  the 


credit  is  not  in  all  cases  due  to  the  declarations  of  a  dying  person ; 
fur  his  body  may  have  survived  the  powers  of  his  mind ;  or  his 
recollection,  if  his  senses  are  not  impaired,  may  not  be  perfect ; 
or,  for  the  sake  of  ease,  and  to  be  rid  of  the  importunity  and 
annoyance  of  those  aruuud  him,  he  may  say,  or  seem  to  say,  what- 
ever they  may  choose  to  suggest.^  These,  or  the  like  considera- 
tions, have  been  regarded  as  counterbalancing  the  force  of  tiio 
general  principle  above  stated;  leaving  this  exception  to  stand 
only  upon  the  ground  of  the  public  necessity  of  preserving  the 
lives  of  the  community,  by  bringing  manslayers  to  justice.  For 
it  often  happens,  that  there  is  no  third  person  present  to  be  an 
eyewitness  to  the  fact ;  and  the  usual  witness  in  other  cases  of 
felony,  namely,  the  party  injured,  is  himself  destroyed.^  But 
in  thus  restricting  the  evidence  of  dying  declarations  to  cases  of 


admitted,  is  held  not  to  be  repealed  by, 
nor  inconsistent  witli,  those  express  pro- 
visions of  constitutiojial  law,  whicli  secure 
to  the  person  accused  of  a  crime,  the  rij^ht 
to  be  confronted  with  the  witnesses  aj^ainst 
him.  Anthony  v.  The  State,  1  Meigs, 
iitiS;  Woodsides  v.  The  State,  2  How. 
Mis.  R.  655;  [Campbell  v.  State,  11  Geo. 
353.1 

1  Rex  V.  Mead,  2  B.  &  C.  G05.  In  this 
case  the  prisoner  had  been  convicted  of 
perjury,  and  moved  for  a  new  trial,  be- 
cause convicted  against  the  weight  of  evi- 
dence ;  after  wliich  he  shot  the  ])rosecutor. 
Upon  showing  cause  against  the  rule,  the 
counsel  for  the  prosecution  offered  the  dy- 
ing declarations  of  tlie  prosecutor,  relative 
to  the  fact  of  [jerjury  ;  but  the  evidence 
was  adjudged  inadmissible.  The  same 
point  wiis  ruled  by  Bayley,  J.,  in  Rex 
V.  llutcliinson,  who  was  indicted  for  ad- 
ministering poison  to  a  woman  pregnant, 
but  not  quick  with  child,  in  order  to  pro 
cure  abortion.  2  B.  &  C.  t)08,  note.  This 
doctrine  was  well  considered,  and  ap- 
proved in  Wilson  v.  Boerem,  15  Johns. 
286.  In  Rex  v.  Lloyd  et  al.,_  4  C.  ^  P. 
238,  such  declarations  were  rejected  on  a 
trial  for  robbery.  Upon  an  inilictment  for 
the  murder  of  A,  by  jioison,  which  was 
also  taken  by  B,  wlio  died  in  consequence, 
it  was  held, "that  tlie  dying  declarations  of 
B  were  admissil)le,  though  the  prisoner 
wa.s  not  indictetl  for  murdering  her.  Rex 
V.  Baker,  2  .M.  &  Bob,  53 ;  [State  r.  Cam- 
eron, 2  Chan.l.  172.  j  [  *  Dailey  v.  N.  Y.  & 
N.  H.  Railw.  32  (.'onn.  In  some  of  the 
states,  dying  declarations  have  been  re- 
ceived in  civil  causes.  Malaun  v.  Ammon, 
1  Grant's  Cases  (Benn.),  123.     But  it  has 


arisen  from  a  misapprehension  of  the  true 
grounds  upon  which  the  declarations" are  - 
receivable  as  testimony.  It  is  not  received  I 
upon  any  other  ground  than  that  of  ne- 1 
cessity,  in  order  to  prevent  murder  going  | 
unpunished.  What  is  said  in  the  books  5 
about  the  situation  of  the  declarant,  lie' 
being  virtually  under  the  most  solemn 
sanction  to  speak  the  truth,  is  far  from 
presenting  the  true  gr(iun<l  of  the  admis- 
sion, for  if  that  were  all  that  is  requisite 
to  render  the  declarations  evidence,  the 
apprehension  of  death  should  have  the 
same  effect,  since  it  would  place  the  de- 
clarant under  the  same  restraint  as  if  the 
apprehension  were  founded  in  feet.  But 
both  must  concur,  both  the  fact  and  the 
apprehension  of  being  in  cxtremix.  And, 
although  it  is  not  indis])ensable  tiiat  tiiere 
should  be  no  other  evidence  of  the  same 
facts,  the  rule  is,  no  doubt,  based  upim  the 
presumption,  that  iii  the  majority  of  cases 
there  will  be  no  other  equally  satisfactory 
proof  of  the  same  facts.  This  presumjition 
and  the  consequent  probability  of  the  crime 
going  unpunished,  is  unquestionably  the 
chief  ground  of  this  exception  in  the  Law 
of  Evidence.  And  the  great  reason  why- 
it  could  not  be  received  generally,  as  evi- 
dence in  all  cases  where  the  facts  involved 
should  thereafter  come  in  question,  seems 
to  be  that  it  wants  one  of  the  most  iin])or- 
fcmt  and  indispensable  elements  of  testi- 
mony, tliat  of  an  opjiortunity  for  cross- 
examination  by  the  party  against  whom 
it  is  oflered.] 

■^  Jackson  v.  Kniffen,  2  Johns.  31,  35, 
per  Livingston,  J. 

8  1  East,  B.  C.  353. 


y 


CHAP.  IX.]  OF   DYING    DECLARATIONS.  183 

trial  for  homicide  of  the  declarant,  it  should  be  observed,  that 
this  applies  only  to  declarations  offered  on  the  sole  ground,  that 
they  were  made  in  extremis  ;  for  where  they  constitute  part  of  the 
res  gestce,  or  come  within  the  exception  of  declarations  against 
interest,  or  the  like,  they  are  admissible  as  in  other  cases ;  irre- 
spective of  the  fact  that  the  declarant  was  under  apprehension  of 
death.^ 

§  157.  The  persons,  whose  declarations  are  thus  admitted,  are 
considered  as  standing  in  the  same  situation  as  if  they  were 
sworn  ;  tlie  danger  of  impending  death  being  equivalent  to  the 
sanction  of  an  oath.  It  follows,  therefore,  that  where  the  declar- 
ant, if  living,  would  have  been  incompetent  to  testify,  by  reason 
of  infamy,  or  the  like,  his  dying  declarations  are  inadmissible .^ 
And,  as  an  oath  derives  the  value  of  its  sanction  from  the  religious 
sense  of  the  party's  accountability  to  his  Maker,  and  the  deep 
impression  that  he  is  soon  to  render  to  Him  the  final  account; 
wherever  it  appears  that  the  declarant  was  incapable  of  this  reli- 
gious sense  of  accountability,  whether  from  ini^^^^  imbecility 
of  mind,  or  tender  age,  the  declarations  are  alike  inadmissible.^ 
On  the  other  hand,  as  the  testimony  of  an  accomplice"  is' aclmis- 
sible,  against  his  fellows,  the  dying  declarations  of  a  particeps 
criminis  in  an  act,  which  resulted  in  his  own  death,  are  admissible 
against  one  indicted  for  the  same  murder.* 

§  158.  It  is  essential  to  the  admissibility  of  these  declarations, 
and  is  a  preliminary  fact,  to  be  proved  by  the  party  offering  them 

1  Supra,  §§  102, 108, 109, 110,  147,  148,  petrators  was  rejected...  See  also  Eegina 

149.     To  some  of  these  classes  may  be  re-  I'TlffewetF;  T  "Car.  iFTlarshm.  534.     [See 

ferred   the  cases  of  Wright  i'.  Littler,  3  State  r.  Shelton,  2  Jones  Law  (N.  C.)  360; 

Bm-r.  1244;   Aveson  v.  Ld.  Kimiaird,  6  State  v.  Peace,  1  lb.  251 ;  Oliver?;.  State, 

East,  188 ;  and  some  others.     It  was  once  17  Ala.  587. j 

tliought  that  the  dying  declarations  of  tlie  ^  Rex  v.   Drummond,    1   Leach's   Cr 

subscribing  witness  to  a  forged  instrument  Cas.  378. 

were  admi"ssible  to  impeach  it ;   but  such  »  ^px  v.  Pike,  3  C.  &  P.  598 ;  Eegina 

evidence  is  now  rejected,  for  the  reasons  v.  Perkins,  9  C.  &  P.  395;  2  Mood.  Cr.  C. 

already  stated.     Supra,  §  126.     See  Sto-  135 ;  2  Russell  on  Crimes,  688. 
bart  V.  Dryden,  1  Mees.  &  W.  615,  627.         *  Tinckler's  case,  1  East,  P.  C.  354.|> 

In  Regina  r.  Megson  et  al,  9  C.  «&  P.  418,  [Where  the  declarations  have  been  put  in(t 

420,  the   prisoners  were  tried  on   indict-  evidence,  and  an  attempt  has  been  made^ 

ments,  one  for  the  murder  of  Ann  Stew-  by  the  other  side  to  destroy  the  effect  of  | 

art,  and  the  other  for  a  rape  upon  her.  sudi  declarations  by  showing  the  bad  char- ■ 

In  the  former  case,  her  declarations  were  acter  of  the  deceased,  the  in-osecution,  for,1. 

rejected,  because   not  made   in   extremis;  the  purpose  of  corroborating  the  evidence,', 

and  in  'the  latter  so  much   of  them   as  may  prove  that  the  deceased  made  other!: 

showed  that  a  dreadful  outrage  had  been  declarations   to   the  same  purport,  a  fewj 

perpetrated  upon  her  was  received  as  part  moments  alter  he  was  struck,  although  it;; 

of  the  outrage  itself,  being,  in  contempla-  did  not  appear  that  he  was  then  under  the* 

Ition    of   law,    contemporaneous;    but    so  apprehension  of  immediate  death.     State! 

much  xs  related  to  the  identity  of  tlie  por^  v.  Thomason,  1  Jones,  Law  (N.  C.)  274.] 


184  LAW   OF   EVIDENCE.  [PART   II. 

ill  evidence,  that  tlicy  were  made  under  a  sense  of  impending  death; 
but  it  is  not  necessary  tliat,  tliey  should  Tie  s"faEed,'aOTre  tiincTto 
'be*lo"madc.  It  is  enough,  if  it  satisfactorily  appears,  in  any 
lnode7~that  tliey  were  made  under  that  sanction  ;  wliether  it  bo 
dh-ectly  proved  by  the  exi)ress  language  of  the  declarant,  or  be  in- 
ferred from  liis  evident  danger,  or  the  opinions  of  tlie  medical 
or  other  attendants,  stated  to  him,  or  from  his  conduct,  or  other 
circumstances  of  the  case,  all  of  which  are  resorted  to,  in  order 
to  ascertain  the  state  of  the  declarant's  mind.^  The  length  of 
time  which  elapsed  between  the  declaration  and  the  death  of  the 
declarant  furnishes  no  rule  for  the  admission  or  rejection  of 
the  evidence ;  though,  in  the  absence  of  better  testimony,  it  may 
serve  as  one  of  the  exponents  of  the  deceased's  belief,  that  his 
dissolution  was  or  was  not  impending.  It_is  the  impression 
of  almost  immediate  dissolution,  and  not  the  rapid  succession  of 
death^ln  pMJnt  of  fart,  that  renders  lbhe_  testimony  admissible.^ 
Therefore,  where  it  appears  that  the  deceased,  at  the  time  of  the 
declaration,  had  any  expectation  or  hope  of  recovery,  however 
slight  it  may  have  been,  and  though  death  actually  ensued  in  an 
hour  afterwards,  the  declaration  is  inadmissible.^  On  the  other 
hand,  a  belief  that  he  will  not  recover  is  not  in  itself  sufficient, 
unless  there  be  also  the  prospect  of  "  almost  immediate  dissolu- 
tion." * 

1  Rex  V.  Woodcoclc,  2  Leach's  Cr.  Cas.  9  ;  Logan  v.  Tlie  State,  Id.  24 ;  [Oliver  v. 

667  ;  Jolm's  case,  1  East,  P.  C.  357,  358 ;  State,  17  Ala.  587  ;  Johnson  v.  State,  lb. 

Rex  V.  Bonner,  6  C.  &  P.  386 ;    Hex  v.  618.] 

Van  Butchell,  Id.  631 ;  Rex  v.  Mosley,  1  '^  So  ruled  in  Welborn's  case,  1  East, 

Moody's  Cr.  Cas.  97  ;  Rex  v.  Spilsbflry,  7  P.  C.  358,  359  ;   Rex  v.  Christie,  2  Iluss. 

C.  &  P.  187,  per  Coleridge,  J.;    Reg.  v.  on  Crimes,  685;  Rex  v.  Hay  ward,  6  C.  & 

Perkins,  2  Mood.   Cr.   Cas.    135 ;    Mont-  P.  157,  160 ;  Rex  v.  Croclcett,  4  C.  &  P. 

gomery  v.  The  State,  11  Ohio,  424;  Dunn  544;  Rex  v.  Fagent,  7  C.  &  P.  288.    [The 

?7.  Tlie  State,  2  Pike,  229 ;  Commonwealth  declarations   made  by  one  in  Ijis  last  ill- 

V.  M'Pike,  3  Cush.  181 ;   Reg.  v.  Moouey,  ness,  who  said  he  should  die,  but  whom 

5  Cox,  C.  C.  318.  the  physician  liad  just  told  he  might  re- 

■■^  In  Woodcock's   case,  2  Leach's  Cr.  cover,  are  not  admissible  as  dying  declara- 

Cas.    563,   the    declarations    were    made  tions.    By  Harris,  J.    People  v.  Robinson, 

forty-eight  hours  before  death  ;  in  Tinck-  2  Parker,  Cr.  R.  235.    See  People  v.  Kiiick- 

ler's  case,  1  East,  P.  C.  354,  some  of  them  erbocker,  1  lb.  302  ] 

were  maile  ten  days  before  death ;  and  in  *  Such  was  the  language  of  HuUock, 

Rex  V.  Mosley,  1  Mood.  Cr.  Cas.  97,  tliey  B.,  in  Rex  v.  Van  Butcliell,  3  C.  &  P.  629, 

were  made  eleven  days  before  death  ;  and  631.    See  ace.  Woodcock's  case,  2  Leach's 

were  all  received.    In  this  last  instance,  it  Cr.  Cas.  567,  per  Ld.  C.  B.  Eyre;    Hex  v. 

appeared  that  the  surgeon  did  not  think  Boinier,  (5  C.  &  P.  386  ;  Commoiiwealtli  v. 

the  case  hopeless,  and  told  the  patient  so;  King,  2  Virg.  Cases,  78;    Commonwealth 

hut  that  the  patient   thought  otherwise,  v.    Gibson,   Id.    Ill*    Commonwealth   v. 

See  also  Regina  i-.  Howell,  1  Denis.  Cr.  Vass,   3   Leigh,    R.    786 ;    The    State   v. 

Cas.  1.     In  Rex  v.  Bonner,  6  C.  &  P.  386,  Poll,  1  Hawks,  442;  Regina  v.  Perkins,  9 

they  were  made  three  days  before  death.  C.  &  P.  395;  2  Mood.  Cr.  Cas.  135,  s.  c; 

And  see  Smith  v.  The  State,  9  Humph.  Rex  v.  Ashton,  2  Lewin's  Cr.  Cas.  147. 


CHAP.  IX.]  OF  DYING  DECLARATIONS.  185 

§  159.  The  declarations  of  the  deceased  are  admissible  only  to 
those  things^  to  which  he  would  have  been  competent  to  testify,  if  sworn 
in  the  cause.     They  must,  therefore,  in  general,  speak  to  facts 
only,  and  not  to  mere  matters  of  opinion  ;  and  must  be  confined 
to  what  is  relevant  to  the  issue.     But  the  right  to  oifer  them  in 
evidence  is  not  restricted  to  the  side  of  the  prosecutor ;  tliey  are  f 
equally  admissible  in  favor  of  the  party  charged  with  the  death. ^  J 
It  is  not  necessary,  however,  that  the  examination  of  the  deceased  | 
should  be  conducted  after  the  manner  of  interrogating  a  witness   i 
in  the  cause ;  though  any  departure  from  this  mode  may  aifect  i 
the  validity  and  credibility  of  the  declarations.     Therefore  it  is  | 
no  objection  to  their  admissibility,  that  they  were  made  in  answer  » 
to  leading  questions,  or  obtained  by  pressing  and  earnest  solicita-  | 
tion.^     But  wdiatever  the  statement  may  be,  it  must  be  complete 
in  itself;  for,  if  the  declarations  appear  to  have  been  intended  by 
the  dying  man  to  be  connected  with  and  qualified  by  other  state- 
ments, which  he  is  prevented  by  any  cause  from  making,  they 
will  not  be  received.^ 

§  160.  The  circumstances  under  which  the  declarations  were 
made  are  to  be  shown  to  the  judge;  it  being  his  province,  and  not 
that  of  the  jury,  to  determine  whether  they  are  admissible.  In 
Woodcock'' s  case,  the  whole  subject  seems  to  have  been  left  to  the 
jury,  under  the  direction  of  the  court,  as  a  mixed  question  of  law 
and  fact ;  but  subsequently  it  has  always  been  held  a  question 
exclusively  for  the  consideration  of  the  court ;  being  placed  on 
the  same  ground  with  the  preliminary  proof  of  documents,  and 
of  the  competency  of  witnesses,  which  is  always  addressed  to  the 
court.*  But  after  the  evidence  is  admitted,  its  credibility  is 
entirely  within  the  province  of  the  jury,  who  of  course  are  at 

1  Bex  V.  Scaife,  1  Mood.  &  Ro.  551;  2  v.  Hucks,  1  Stark.  E.  521,  523,  to  have 
Lewin's  Cr.  Cas.  150,  s.  c.  been  so  resolved  by  all  the  judges,  in  a 

2  Eex  V.  Fas;ent,  7  C.  &  P.  238  ;  Com-  case  proposed  to  them.  Welborn's  case, 
monwealth  v.  Vass,  3  Leigh,  R.  786 ;  Rex  1  East,  P.  C.  300;  John's  case,  Id,  358  ; 
V.  Reason  e<aZ.,  1  Stra.  499;  Rex  v.  Wood-  Rex  v.  Van  Butchell,  3  C.  &  P.  629;  Rex 
cook,  2  Leach's  Cr.  Cas.  563 ;  [OHver  v.  v.  Bonner,  6  C.  &  P.  386  ;  Rex  v.  Spils- 
State,  17  Ala.  587.]  bury,  7  C.  &  P.  187,  190;    The  State  v. 

3  3  Leigh,  R.  787.  [Where  the  de-  Poll,  1  Hawks,  444 ;  Commonwealth  v. 
ceased  being  asked  "  who  shot  him,"  re-  Murray,  2  Ashm.  41;  Commonwealth 
plied  "  the  prisoner,"  the  declaration  is  v.  WiUiams,  Id.  69 ;  Hill's  case,  2  Gratt. 
complete,  and  cannot  be  rejected  because,  594;  McDaniel  v.  The  State,  8  Sm.  &  M. 
from  weakness  and  exhaustion,  he  was  401.  Where  the  dying  deponent  declared 
imable  to  answer  anotlier  question  pro-  that  the  statement  was  "as  nigh  right  as 
pounded  to  him  innnediately  afterwards,  he  could  recollect,"  it  was  held  admissible. 
McLean  v.  State,  16  Ala.  672.]  The  State  v.  Ferguson,  2  Hill,  S.  Car.  R. 

4  Said,  per  Ld.  Ellenborough,  m  Rex  619  ;    [State  v.  Howard,  32  Vt.  380.] 

16* 


186  LAW    OF    EVIDENCE,  [PART    II. 

liberty  to  weigli  all  the  circumstances  under  which  the  declara- 
tious  were  made,  mcluding  those  already  proved  to  the  judge, 
and  to  give  the  testimony  only  such  credit  as,  upon  the  whole, 
they  may  think  it  deserves.^ 

§  101.  If  the  statement  of  the  deceased  was  committed  to  writing 
and  signed  hy  hi/ii,  at  the  time  it  was  made,  it  has  been  held 

L essential  that  the  writing  should  be  produced,  if  existing;  and 
that  neither  a  copy,  nor  parol  evidence  of  the  declarations,  could 

I  l)e  admitted  to  supply  the  omission.^  But  whore  the  declarations 
had  been  repeated  at  different  times,  at  one  of  which  they  were 
made  under  oath,  and  informally  reduced  to  writing  by  a  witness, 

I  and  at  the  others  they  were  not,  it  was  held  that  the  latter  might 
be  proved  by  parol,  if  the  other  could  not  be  produced.^  If  the 
deposition  of  the  deceased  has  been  taken  under  any  of  the  stat- 
utes on  that  subject,  and  is  inadmissible,  as  such,  for  want  of 
compliance  with  some  of  the  legal  formalities,  it  seems  it  may 
still  be  treated  as  a  dying  declaration,  if  made  in  extremis.^ 

§  161a.  It  has  been  held  that  the  substance  of  the  declaration^ 
may  be  given  in  eyT^^enceTTriSfie  witness  is  not  able  to  state  the 
precise  laniiuiiLi-i;  uscd.^  And  we  have  already  seen  that  it  is  no 
objection  in  tin  ir  admissibility,  that  they  were  obtained  in  answer 
to  questions  asked  by  the  bystanders,  nor  that  the  questions 
themselves  were  leading  (juostions  ;  and  that,  if  it  appear  that  the 
declarations  were  intended  by  the  dying  person  to  be  connected 
with  and  qualified  by  other  statements,  material  to  the  complete- 
ness of  the  narrative,  and  that  this  was  prevented  by  interruption 
or  death,  so  that  the  narrative  was  left  incomplete  and  partial,  the 
evidence  j^  inadmissible.^ 

1  2  Stark.  Evid.  263  ;   Phil.  &  Am.  on  2  Rpx  v.  Gay,  7  C.  &  P.  230;  Trowter's 

Evid.  304;   Koss  v.  Gould,  5  Greenl.  204 ;  case,  P.  8  Geo.  I.  B.  R.  12  Vin.  Abr.  118, 

Vass's  case,  3  Leif^li,  11.  794.     See   also  119;  Leach  c  Simpson  e^«/.,  1  Law  &  Eq. 

the   remarks   of  Mr.   Evans,  2   Poth.  on  R.  58;  5  M.  &  W.  309;  7  Dowl.  P.  C.  13; 

(>l)lij.(.  2uij  (294),  A])p.  No.  16,  who  thinks  3  Jur.  654,   s.  c. ;    [State   v.  Cameron,  2 

lliat  the  jury  shoulil  he  directed,  ]irevious  Ciiand.  172.] 

T.I)  considering  tlie  eftect  of  the  evidence,  '^  Hex  v.  Reason  et  nl.,  1  Str.  499,  500. 

to  determine,  —  1st,  Wliether  the  deceased  *  Rex  v.  Woodcock,  2  Leach,  Cr.  Cas. 

was  really  in  such  circumstances,  or  used  563 ;  Rex  v.  Callaghan,  McNally's  Evid. 

sucii  expressions,  from  which  the  appre-  385. 

hiMision   in  question   was    inferred;  —  2d,  ^  Montg<miory  v.  Tlie  State,  11  Ohio, 

Whether  tlie  inroreiice  deduced  from  such  424;    Ward  r.  The  State,  8  Blackf   101. 

circumstances  or  ex])ressi(jns  is  correct; —  And  see  /;;//(/,  §  165.     [Tlie  substance  of 

3d,  Wliether  the  deceased  did  make  the  the  declarations  is  sufficient,  and  it  may 

declarations  alleged  against  the  accused;  be  given,  if  need  be,  by  an  interpreter. 

—  and  4th,  Wliether  tliose  declarations  are  Starkey  v.  People,  17  111.  17.] 
to  he  admitted,  as  sincere  and  accurate.  •*  Vass's  case,  3  Leigh,  R.  786;   supra, 

Trant's  case,  McNally's  Evid.  385.  §  159. 


CHAP.  IX.]  OF   DYING   DECLARATIONS.  187 

§  1616.  The  testimony  here  spoken  of  may  be  given  as  well 
hy  signs  as  by  words.  Thus,  where  one,  being  at  the  point  of 
death  and  conscious  of  her  situation,  but  unable  to  articulate  by 
reason  of  the  wounds  she  had  received,  was  asked  to  say  whether 
the  prisoner  was  the  person  who  had  inflicted  the  wounds,  and,  if 
so,  to  squeeze  the  hand  of  the  interrogator,  and  she  thereu.pon 
squeezed  his  hand,  it  was  held  that  this  evidence  was  admissible 
and  proper  for  the  consideration  of  the  jury.^ 

§  162.  Though  these  declarations,  when  deliberately  made, 
under  a  solemn  and  religious  sense  of  impending  dissolution, 
and  concerning  circumstances,  in  respect  of  which  the  deceased 
was  not  likely  to  have  been  mistaken,  are  entitled  to  great  weight, 
if  precisely  identified ;  yet  it  is  always  to  be  recollected,  that  the 
accused  has  not  the  power  of  cross-examination,  —  a  power  quite 
as  essential  to  the  eliciting  of  all  the  truth,  as  the  obligation  of  an 
oath  can  be ;  and  that  where  the  witness  has  not  a  deep  and 
strong  sense  of  accountability  to  his  Maker,  and  an  enlightened 
conscience,  the  passion  of  anger  and  feelings  of  revenge  may,  as 
they  have  not  unfrequently  been  found  to  do,  affect  the  truth  and 
accuracy  of  his  statements ;  especially  as  the  salutary  and  re- 
straining fear  of  punishment  for  perjury  is  in  such  cases  with- 
drawn.    And  it  is  further  to  be  considered,  that  the  particulars  of 


1  Commonwealth  v.  Casey,  6  Monthly  put  to  her,  it  is  to  be  observed  that  all 
Law  Eep.  p.  203;  [11  Gush.  417,  421.  words  are  signs;  some  are  made  by  the 
The  entire  opinion  of  the  court,  by  Shaw,  rdouth,  and  others  by  the  hands.  There 
C.  J.,  is  as  foUows  ;  "We  appreciate  the  was  a  civil  case  tried  in  Berkshire  County, 
importance  of  the  question  offered  for  our  where  a  suit  was  brought  against  a  rail- 
decision.  Where  a  person  has  been  in-  road  company,  and  the  question  was, 
jured  in  such  a  way,  that  his  testimony  whether  a  female  who  was  run  over  sur- 
cannot  be  had  in  the  customary  way,  the  vived  the  accident  tor  any  length  of  time, 
usual  and  ordinary  rules  of  evidence  must.  She  was  unable  to  speak,  but  was  asked, 
from  the  necessity  of  the  case,  be  de-  if  she  had  consciousness,  to  press  their 
parted  from.  The  point  first  to  be  estab-  hands,  and  the  testimony  was  admitted, 
lished  is,  that  the  person  whose  dying  If  the  injured  party  had  but  the  action  of 
declarations  are  sought  to  be  admitted  a  single  linger,  and  with  that  finger  pointed 
was  conscious  that  he  was  near  his  end  at  to  the  words  "yes  "  and  "  no,"  in  answer  to 
the  time  of  making  them ;  for  this  is  sup-  questions,  in  such  a  manner  as  to  render 
posed  to  create  a  solemnity  equivalent  to  it  probable  that  she  understood,  and  was 
an  oath.  If  this  fact.be  satisfactorily  es-  at  the  same  time  conscious  that  she  could 
tablished,  and  if  the  declarations  are  made  not  recover,  then  it  is  admissible  evidence, 
freely  and  voluntarily,  and  without  coer-  It  is,  therefore,  the  opinion  of  the  court, 
cion,  they  may  be  admitted  as  competent  that  the  circumstances  under  which  the 
evidence  to  go  to  the  jury.  But,  after  responses  were  given  by  Mrs.  Taylor  to 
they  are  admitted,  the  facts  of  the  declara-  the  questions  which  were  put  her  war- 
tions  and  their  credibility  are  still  for  the  rant  that  the  evidence  shall  be  admitted, 
judgment  of  the  jury.  but  it  is  for  the  jury  to  judge  of  its  credi- 

"  In  regard  to  the  matter  before  the  bility,  and  of  the  effect  which  shall  be 

court,  and  the  admissibility  of  the  signs  given  to  it."  ^ 
by  Mrs.  Taylor,  in  reply  to  the  questions 


188 


LAW   OF  EVIDENCE. 


[part  II. 


the  violence,  to  which  the  deceased  has  spoken,  were  in  general 
likely  to  have  occurred  under  circumstances  of  confusion  and 
surprise,  calculated  to  prevent  their  being  accurately  observed ; 
and  leading  both  to  mistakes  as  to  the  identity  of  persons,  and 
to  the  omission  of  facts  essentially  important  to  the  completeness 
and  truth  of  the  narrative.^ 


^  Phil.   &  Am.  on  Evid.  305,  806 ;   1  in  the  use  of  this  kind  of  evidence,  in  2 

Phil.  Evid.  292;   2  Johns.  35,  36,  per  Liv-  Poth.  Obi.  255  (293) ;  2  Stark.  Evid.  263. 

ingston,  J.    See  also  Mr.  Evans's  observa-  See  also  Kex  v.  Ashton,  2  Lewiu's  Cr. 

tions  on  the  great  caution  to  be  observed  Cas.  147,  per  Alderson,  B. 


CHAP,  X.]         OP  WITNESSES   SUBSEQUENTLY   DISQUALIFIED.  189 


CHAPTER   X. 

OP  THE   TESTIMONY   OF   WITNESSES   SUBSEQUENTLY   DEAD,   ABSENT,   OR 

DISQUALIFIED. 

[*§1G3.  Admissibility  of  evidence  of  deceased  witness  at  a  former  triaL 

164.  Not  requisite  all  the  parties  to  the  suits  should  have  been  the  same,  but  that 

the  party  should  have  opportunity  for  cross-examination. 

165.  The  substance  of  what  the  witness  testified,  both  on  direct  and  cross-exami- 

nation, must  be  proved.  • 

166.  Any  witness  may  prove  it,  from  memory  and  his  notes  taken  at  the  time. 

167.  Cases  where  the  witness  has  become  incompetent  from  subsequently  acquired 

interest. 

168.  It  would  seem,  in  such  cases,  the  testimony  given  at  a  former  trial  should  be 

received.     Qualification  of  the  rule  stated  by  the  author.] 

§  163.  In  the  fifth  class  of  exceptions  to  the  rule  rejecting  hear- 
say evidence  may  be  included  the  testimony  of  deceased  witnesses^ 
giveti  in  a  former  action,  between  the  same  parties ;  though  this 
might,  perhaps,  with  equal  propriety,  be  considered  under  the 
rule  itself.  This  testimony  may  have  been  given  either  orally,  in 
court,  or  in  written  depositions  taken  out  of  court.  The  latter 
will  be  more  particularly  considered  hereafter,  among  the  instru- 
ments of  evidence.  But  at  present  we  shall  state  some  principles 
applicable  to  the  testimony,  however  given.  The  chief  reasons  for 
the  exclusion  of  hearsay  evidence  are  the  want  of  the  sanction  of 
an  oath,  and  of  any  opportunity  to  cross-examine  the  witness. 
But  where  the  testimony  was  given  under  oath,  in  a  judicial  pro- 
ceeding, in  which  the  adverse  litigant  was  a  party,  and  where  he 
had  the  power  to  cross-examine,  and  was  legally  called  upon  so  to 
do,  the  great  and  ordinary  test  of  truth  being  no  longer  wanting, 
the  testimony  so  given  is  admitted,  after "  the  decease  of  the  wit- 
ness, in  any  subsequent  suit  between  the  same  parties.^  It  is  also 
received,  if  the  witness,  though  not  dead,  is  out  of  the  jurisdic- 
tion, or  cannot  be  found  after  diligent  search,  or  is  insane,  or  sick, 

1  Bull.  N.  P.  239,  242  ;  Mayor  of  Don-  Beach,  5  Verm.  172 ;  Lightner  r.  Wike,  4 
caster  v.  Day,   3  Tamit.   262;    Glass  r.     S.  &  K.  203. 


W 


100 


LAW   OF   EVIDENCE. 


[part  II. 


and  unable  to  testify,  or  has  been  summoned,  but  appears  to  have 
been  kept  away  by  the  adverse  party.^  But  testimony  tluis  offered 
is  open  to  all  the  objections  wliich  might  be  taken,  if  tlie  witness 
were  personally  present.^  And  if  the  witness  gave  a  written  depo- 
sition in  the  cause,  but  afterwards  testified  orallj  in  .court,  parol 
evidence  may  be  given  of  what  he  testified  vivd  voce,  notwithstand- 
ing the  existence  of  the  deposition.^ 

§  104.  Tiie  admissibility  of  this  evidence  seems  to  turn  rather 
on  the  right  to  cross-examine,  than  upon  the  precise  nominal  iden- 
tity of  all  the  parties.  Therefore,  where  the  witness  testified  in 
a  suit,  in  which  A  and  several  others  were  plaintiffs,  against  B 


1  Bull.  N.  P.  239,  243  ;  1  Stark.  Evid. 
264;  12  Vin.  Abr.  107,  A.  b.  31;  Godh. 
326;  l?ex  v.  Eriswell,  3  T.  R.  707,  7-:i, 
per  Lil.  Kenyon ;  [Lonji  r.  Davis,  18  Ala. 
biOl;  Covaiihovan  v.  Hart.  21  Penn.  ('J 
Harris),  4'J5.]  As  to  tho  otfect  of  interest 
subsequently  acquired,  see  infra,  §  167. 
Upon  tlie  question  whetber  this  kind  of 
evidence  is  admissible  m  any  other  con- 
tinponcy  except  the  death  of  the  witness, 
liiere  is  some  discrepancy  among  the 
American  autiiorities.  It  has  been  re- 
fused, where  the  witness  had  subsequently 
become  interested,  but  was  living  and 
within  reach;  Chess  v.  phess,  17  S.  &  R. 
40;( ;  Irwin  v.  Reed,  4  Yates,  512:  where 
he  was  not  to  be  found  witiiin  the  juris- 
diction, but  was  reporteil  to  have  gone  to 
an  adjoining  state ;  Wilber  v.  Seidcn,  G 
Cowan,  162 :  where,  since  the  former 
trial,  he  liad  become  incompetent  by  being 
convicted  of  an  infamous  crime  ;  Le  Ba- 
ron (.-.  Cronibie,  14  ^lass.  2:'>4 :  where, 
tliougii  present,  he  liad  forgotten  the  facts 
to  winch  lie  had  formerly  testified;  Dray- 
ton (;.  Wells,  1  Nott  &  McCord,  409:  and 
wliere  lie  has  proved  to  have  left  the  state, 
after  being  summoned  to  attend  at  the 
trial;  Finn's  case,  5  Rand.  701.  In  this 
last  case  it  was  lield,  that  this  sort  of  testi- 
mony was  not  admissible  in  any  criminal 
C4ise  whatever.  [8ee  also  Brogy  v.  Com- 
monwealth, 10  Gratt.  722.]  In  the  cases 
of  Le  Baron  v.  Cronibie,  ^yilber  v.  Sei- 
dell, iuid  also  in  Crary  v.  Spragiie,  12 
Wend.  41,  it  was  said,  that  such  testimony 
was  not  admissible  in  any  case,  excc[)t 
where  the  witness  was  sliown  to  be  dead; 
but  tliis  point  was  not  in  either  of  those 
cases  directly  in  judgment;  and  in  some 
of  them  it  does  not  appear  to  have  been 
fully  considered.  [See  also  Weeks  v. 
I.,owerre,  8  Barb.  530.]  On  the  other 
J'iL'.liLj.n  Dravton  r._\VelIs,  it  was  heltlljy 
CheveSjTf^ToTJe  aHmissIble  in  four  cases : 


1st,  where  the  witness  is  dead ;  2d,  in- 
sane :  ">l,  Vh'-ihI  ;ra3"^  imrr^th,  where 
he  lias  liirii  iM  jr!  :i\',,iy  UyToTiti-ivaTice  of 
jlic  (itluT  p  iri_\ .  See  also  iloore  v.  Pear- 
"s(.ii.  <'.  \V.iti-  X-  Serg.  51.  In  Magill  v. 
Kautlijiau,  1  S.  .i;  R.  317,  and  in  Carpen- 
ter V.  Grotf,  5  8.  &  R.  162,  it  was  admitted 
on  proof  that  the  witness  had  removed 
from  Pennsjdvania  to  Ohio,  —  it  was  also 
admitted,  where  the  witness  was  unable  to 
testify,  by  reason  of  sickness,  in  Miller  v. 
Russell,  7  Martin,  266,  n.  s.  ;  and  even 
wliere  he,  being  a  sheriff,  was  absent  on 
official  duty.  Isoble  v.  Martin,  7  Martin, 
282,  N.  s.  But  if  it  appears  that  the  wit- 
ness was  not  fully  examined  at  the  former 
trial,  his  testimony  cannot  be  given  in  evi- 
dence. Noble  r.  McCliirtock,  6  Watts  & 
Serg.  58.  If  the  witness  is  gone,  no  one 
knows  whitlier,  and  his  place  of  abode 
cannot  be  ascertained  by  diligent  inquiry, 
the  case  can  hardlj'  be  distinguished  in 
principle  from  that  of  his  death ;  and  it 
would  seem  tliat  his  former  testimony 
ought  to  be  admitted.  If  lie  is  merely 
out  of  the  jurisdiction,  )>ut  the  place  is 
known,  and  his  testimony  can  be  taken 
under  a  commission,  it  is  a  proper  case  for 
the  judge  to  decide,  in  his  tiiscretion,  and 
upon  all  the  circumstances,  whether  the 
purposes  of  justice  will  be  best  served  by 
issuing  such  commission,  or  by  admitting 
the  proof  of  what  he  formerly  testified. 

2  Wright  V.  Tatham,  2  Ad.  &  El.  3,  21. 
Thus,  wliere  the  witness  at  the  former 
trial  was  called  by  the  defendant,  but  was 
interested  on  the  side  of  the  plaintiff,  and 
the  latter,  at  the  second  trial,  offers  to 
prove  his  former  testimony,  the  defendant 
may  object  to  the  competency  of  the  evi- 
dence, on  the  ground  of  interest.  Crary 
V.  Sprague,  12  Wend.  41. 

8  Tod  V.  E.  of  Winchelsea,  3  C.  &  P 
387. 


CHAP.  X.]       OF    WITNESSES    SUBSEQUENTLY    DISQUALIFIED. 


191 


alone,  his  testimony  was  held  admissible,  after  his  death,  in  a 
subsequent  suit,  relating  to  the  same  matter,  brought  by  B  again^ft 
A  alone. ^  And  though  the  two  trials  were  not  between  the 
parties,  yet  if  the  second  trial  is  between  those  who  represent 
the  parties  to  the  first,  by  privity  in  blood,  in  law,  or  in  estate,  the 
evidence  is  admissible.  And  if,  in  a  disjmte  respecting  lands,  any 
fact  comes  directly  in  issue,  the  testimony  given  to  that  fact  is 
admissible  to  prove  the  same  point  or  fact  in  another  action  be- 
tween the  same  parties  or  their  privies,  though  the  last  suit  be  for 
!  other  lands.^  The  principle  on  which,  chiefly  this  evidence  is  ad- 
_  mitted,  namely,  the  right  of  cross-examination,  requires  that  its 
admission  be  carefully  restricted  to  the  extent  of  that  right ;  and  \ 

that  where  the  witness  incidentally  stated  matter,  as  to  which  thej  \j^ 
party  was  not  permitted  by  the  law  of  trials  to  ci-oss-examine  him,|\fr  V« 
his  statement  as  to  thaf  matter  ought  not  afterwards  to  be  re- 
ceived  in  evidence  against  such  party.  Where,  therefore,  the 
point  in  issue  in  both  actions  was  not  the  same,  the  issue  in  the 
former  action  having  been  upon  a  common  or  free  fishery,  and,  in 
the  latter,  it  being  upon  a  several  fishery,  evidence  of  what  a  wit- 
ness, since  de'ceased,  swore  upon  the  former  trial,  was  held  inad- 
missible.^ 

§  165.  It  was  formerly  held,  that  the  person  called  to  prove 


V 


1  Wright  V.  Tatham,  1  Ad.  &  El.  8. 
But  sec  Mattliews  v.  Colburn,  1  Strob.  258. 
[So  it  is  ailinissible  in  a  subsequent  action, 
in  which  the  same  matter  is  in  issue,  be- 
tween jiersons  wlio  were  parties  to  tlie 
Ibrmer  action,  although  otiier  persons,  not 
now  before  the  court,  were  also  parties  to 
the  former  action.  Philailelphia,  W.  &  B. 
K.  R.  Co.  V.  Howard,  13  How.  U.  S.  307. 
But  where  in  a  suit  for  land  against  two 
persons  jointly,  certain  facts  were  admitted 
and  agreed  on  bv  all  the  parties,  in  a  sub- 
sequent suit  for  the  same  land  between  the 
same  defendants,  this  admission  and  agree- 
ment, though  in  writing,  is  not  evidence. 
Fr^'e  i\  Gragg,  35  Maine,  29.] 

"•^  Outram  c.  Morewood,  3  East,  846, 
354,  355,  jier  Ld.  Ellenborough ;  Peake's 
Evid.  (3d.  ed.)  p.  37 ;  Bull.  N.  P.  232; 
Uoe  V.  Derby,  1  Ad.  &  El.  783;  Doe 
V.  Foster,  Id.  791,  note ;  Lewis  v.  Cler- 
ges,  3  Bac.  Abr.  614  ;  Shelton  v.  Bar- 
bour, 2  Wash.  64 ;  Kushford  v.  Countess 
of  Pembroke,  Hard.  472;  Jackson  r.  Law- 
son,  15  Johns.  544 ;  Jackson  v.  Bailey,  2 
Johns.  17 ;  Powell  v.  Waters,  17  Johns. 
176.     See  also  Ephraims  v.  Murdoch,   7 


Blackf.  10;  Harper  v.  Burrow,  6  Ired.  30; 
Clealand  v.  Huey,  18  Ala.  343.] 

3  Melvin  v.  Whiting,  7  Pick.  79.  See 
also  Jackson  v.  Winchester,  4  Dall.  206; 
Ephraims  r.  Murdoch,  7  Blackf.  10. 
[Where  there  was  a  preliminary  examina- 
tion before  a  magistrate  of  a  defendant 
charged  with  a  crime,  and  a  witness,  since 
deceased,  there  testified  for  the  govern- 
ment and  was  cross-examined  by  defend- 
ant's counsel,  and  subseijuently  an  in- 
dictment was  found,  it  was  held,  on  tlie 
trial  of  the  indictment,  that  the  evidence 
of  what  the  witness  testified  to  at  the 
preliminary  examination  was  admissible. 
L'nited  States  r.  Macomb.  5  McLean,  286; 
Davis  .r.  State,  17  Ala.  354  ;  Kendrick  r. 
State,  10  Humph.  479.  The  testimony 
given  before  arbitrators,  by  a  witness, 
since  deceased,  is  admissible  in  evitlence 
in  a  subsequent  suit  between  the  same 
parties  on  the  same  subject-matter,  al- 
though the  award  has  since  been  set  aside, 
provitled  the  submission  was  good,  and  the 
arbitrators  had  jurisdiction.  McAdains 
V.  Stilwell.  13  Penn.  State  R.  90.  See 
Elliott  r.  Heath,  14  N.  H.  131.J 


102 


LAW    OF    EVIUENX'E. 


[part  II. 


what  a  deceased  witness  testified  on  a  former  trial,  must  be 
required  to  repeat  his  precise  tvords,  and  that  testimony  merely 
to  tlie  effect  of  them  was  inadmissible. ^     Bat  this  strictness  is  not 


1  4  T.  R.  2U0,  said,  per.Ld.  Kenyon,  to 
have  been  so  "  agreed  on  all  liands,"  npon 
an  otter  to  prove  wliat  Ld.  ralmorston  liad 
testifieil.  So  held,  also,  by  Washington, 
J.,  in  United  Stales  v.  Wood,  3  Wash. 
410;  1  I'hil.  Evid.  200  [2151,  3d.  ed. ; 
Foster  t-.  Shaw,  7  Serg.  &  li.  103,  per 
Dunean,  J. ;  Wilber  v.  Scldon,  6  Cowen, 
1G5;  Ephraims  r.  IMiirdoch,  7  Blackf.  10. 
The  same  rule  is  ai)plied  to  the  proof  of 
(Iving  declarations.  Mcjntgoniery  v.  Ohio, 
11  Ohio  K.  421.  In  N(fW  Jersey  it  has 
been  held,  that  if  a  witness  testifies  that 
lie  has  a  distinct  recollection,  independent 
of  his  notes,  of  the  tact  that  the  deceased 
was  sworn  as  a  witness  at  the  former  trial, 
of  what  he  was  produced  to  jtrove,  and  of 
the  substance  of  what  he  then  stated;  he 
may  rely  on  his  notes  for  the  language,  if 
he  believes  them  to  be  correct.  Sloan  v. 
Somers,  1  Spencer,  K.  66.  In  M<iss(tr/in- 
setts,  in  The  C.'ommonwealth  v.  Richards, 
IS  Pick.  434,  the  witnesses  did  not  state 
the  precise  words  used  l)y  the  deceased 
witness,  but  only  the  substance  of  them, 
from  recollection,  aided  by  notes  taken  at 
tlie  time ;  awd  one  of  the  witnesses  testi- 
fied that  he  was  confident  that  he  stated 
substantives  and  verbs  correctly,  but  was 
not  certain  as  to  the  prepositions  and  con- 
j mictions.  Yet  the  court  held  this  insuf- 
ficient, and  re(iuired  that  the  testimony 
of  the  deceased  witness  be  stated  m  his 
own  language,  ij)sissiinis  verbis.  Ti'.e  point 
was  afterwards  raised  in  Warren  v.  Nich- 
ols, 6  Met.  261 ;  where  the  witness  stated 
that  he  could  give  the  substance  of  the 
testimony  of  tlie  deceased  witness,  but 
not  the  precise  language  ;  and  the  court 
lield  it  insufhcient;  Hubbard,  J.,  f/mc////- 
eiit.e.  The  rule,  however,  as  laid  down  by 
the  court  m  the  latter  case,  seems  to 
recognize  a  distinction  between  giving  the 
substance  of  the  deceased  witness's  testi- 
mony, and  the  substance  of  the  language; 
and  to  reiiuire  only  that  his  language  be 
suited  substantially,  and  in  all  material 
particulars,  and  not  ipsissiiiiis  verbis.  The 
learned  chief  justice  stated  the  doctrine 
as  follows  :  "  The  rule  upon  which  evi- 
dence may  be  given  of  what  a  deceased 
witness  testified  on  a  former  trial  between 
tlie  same  parties,  in  a  case  where  the 
same  question  was  in  issue,  seems  now 
well  established  in  this  commonwealth  by 
authorities.  It  was  fully  considereil  in 
the  case  of  Commonwealth  v.  liichards, 
18  Pick.  434.  The  principle  on  which 
this  rule  rests  was  accm-ately  stated,  the 


cases  in  sujiport  of  it  were  referred  to, 
and  with  the,  decision  of  which  we  see  no 
cause  to  be  dissatisfied.  The  general  rule 
is,  that  one  person  cannot  Ije  lieartl  to 
tt^snTyTTSTO-^rnnt  il^i'iHluV  l.i^VSOn  has^de- 
cTTirerir tir  relatton  to  a'  ■fT>ct"w'^\iOJA^ 
Knowleduc  and  iK^iiin-  u])o'irtTie^issue. 
ir^is  the  faiiiili:ir  i  iilr  which' " exclucles 
hearsay.  Tlie  reasons  are  obvious,  and 
they  are  two :  First,  because  the  aver- 
ment of  fact  does  not  come  to  the  jury 
sanctioned  by  the  oath  of  the  party  on 
whose  knowledge  it  is  supposed  to  rest; 
and  secondly,  because  the  party  ui)on 
whose  interests  it  is  brought  to  bear  has 
no  opportunity  to  cross-examine  him  on 
whose  sui)posed  knowledge  and  veracity 
the  truth  of  the  fact  depends.  Now  the 
rule,  which  admits  evidence  of  what 
another  said  on  a  former  trial,  must  effec- 
tually exclude  both  of  these  reasons.  It 
must  have  been  testiiiiuni/ ;  that  is,  the 
aflirmation  of  some  matter  of  fact,  under 
oath  ;  it  must  have  been  in  a  suit  between 
the  same  parties  in  interest,  so  as  to  make 
it  sure  that  the  party,  against  whom  it  is 
now  ottered,  had  an  opjiortunity  to  cross- 
examine;  and  it  must  have  been  ujion  the 
same  subject-matter,  to  show  that  his  at- 
tention was  drawn  to  points  now  deemed 
important.  It  must  be  the  same  testi- 
mony which  the  former  witness  gave,  be- 
cause it  comes  to  the  jury  under  the 
sanction  of  his  oath,  and  the  jury  are  to 
weigh  the  testimony  and  judge  of  it,  as 
he  gave  it.  The  witness,  therefore,  nmst 
be  able  to  state  the  language  in  which  the 
testimony  was  given,  sidistaiitiall//  and  in 
all  material  particulars,  because  that  is  the 
vehicle  by  which  the  testimony  of  the 
M'ilness  is  transmitted,  of  which  the  jury 
are  to  judge.  If  it  were  otherwise,  the 
statement  of  the  witness,  which  is  ottered, 
would  not  be  of  the  testimony  of  the 
former  witness  ;  that  is,  of  the  ideas  con- 
veyed by  the  former  witness,  in  the  lan- 
guage in  which  he  embodied  them  ;  but  it 
would  be  a  statement  of  the  present  wit- 
ness's understanding  and  comprehension 
of  those  ideas,  exi)iessed  in  language  of 
liis  own.  Those  ideas  may  have  been  mis- 
understood, modified,  perverted,  or  col- 
ored, by  jiassing  through  the  mind  of  the 
witness",  by  his  knowledge  or  ignorance  of 
the  subject,  or  the  language  in  which  the 
testimony  was  given,  or  by  his  own  preju- 
dices, predilections,  or  habits  of  thought 
or  reasoning.  To  illustrale  this  <listinc- 
tion,  as  we  understand  it  to  be  fixed  by 


CHAP.  X.]         OF    WITNESSES    SUBSEQUENTLY    DISQUALrFIED. 


193 


now  insisted  upon,  in  proof  of  the  crime  of  perjury ;  ^  and  it  has 
been  well  remarked,  that  to  insist  upon  it  in  other  cases,  goes  in 
effect  to  exchide  this  sort  of  evidence  altogether,  or  to  admit  it 
only  where,  in  most  cases,  the  particularity  and  minuteness  of  the 
witness's  narrative,  and  flie  exactness  with  which  he  undertakes  to 
repeat  every  word  of  the  deceased's  testimony,  ought  to  excite 
just  doubts  of  his  own  honesty,  and  of  the  truth  of  his  evidence. 
It  seems,  therefore,  to  be  generally  considered  suflficiciit,  if_the 
witness  is  able  to  state  the  substance  of  what  was  sworn  on  the 
former  'frfal.^     But  he  must  state,  in  substance,  the  whole  of  what 


the  cases :  If  a  witness,  remarkable  for 
his  kiiowledue  of  hnv,  and  his  intclliiience 
on  all  other  subjects,  of  greiit  quickness 
of  apprehension  anil  power  of  discrimina- 
tion, should  dcchire  that  he  could  <i'ivc  tlie 
substance  and  ellect  of  a  former  witness's 
testimony,  but  could  not  recollect  his  lan- 
guage, we  supi)ose  he  would  be  excluded 
by  the  rule.  15 ut  if  one  of  those  remark- 
able men  should  liappea  to  have  been 
present,  of  great  stolidity  of  mind  upon 
most  subjects,  but  of  extraordinary  te- 
nacity of  memory  for  language,  and  who 
would  say  that  he  recollected  and  could 
repeat  all  the  words  uttered  by  the  wit- 
ness ;  although  it  should  be  very  manifest 
that  he  himself  did  not  understand  them, 
yet  his  testimony  would  be  admissible. 
The  witness  called  to  prove  former  testi- 
mony  must  be  able  to  satisfy  one  other 
coiVdition,  namely,  that  he  is  able  to  stale 
all  that  the  witness  tesilfied  oil  the  former 
trial,  as.  wyll  upQn  ihe.dh'CyL.iis.  the.  cross- 
examination.  The  reason  is  obvious.  One 
part  of  his  statement  may  be  qualified, 
softened,  or  colored  by  another.  And  it 
would  be  of  no  avail  to  the  party  against 
whom  the  witness  is  called  to  state  the 
testimony  of  the  former  witness,  that  he 
has  had  the  right  and  ojiportunity  to  cross- 
examine  that  tbrmer  witness,  with  a  view 
of  diminishing  the  weight  or  impairing 
;the  force  of  that  testimony  against  him, 
if  the  whole  and  entire  result  of  that 
,  cross-examination  does  not  accompany  the 
I  testimony.  It  may,  jierhaps,  be  said,  that, 
with  these  restrictions,  the  rule  is  of  little 
Value.  It  is  no  doubt  true,  that  in  most 
cases  of  complicated  and  extended  testi- 
monj%  the  loss  of  evidence,  by  the  decease 
of  a  witness,  cannot  be  avoided.  But  the 
same  residt  follows,  in  most  cases,  from 
the  decease  of  a  witness  whose  testimony 
has  not  been  preserved  in  some  of  the 
modes  provided  by  law.  But  there  are 
some  cases  in  which  the  rule  can  be  use- 
fixlly  applied,  as  ui  case  of  testimony  em- 

VOL.   I.  17 


braced  in  a  few  words,  —  such  as  proof  of 
demand  or  notice,  on  notes  or  bills, — 
cases  in  which  large  amounts  are  often 
involved.  If  it  can  be  used  in  a  fiew 
cases,  consistently  with  the  true  and  sound 
principles  of  the  law  of  evidence,  there  is 
no  reason  for  rejecting  it  altogether.  At 
the  same  time,  care  should  be  taken  so  to 
api)ly  and  restrain  it,  that  it  may  not, 
under  a  plea  of  necessity,  and  in  order  to 
avoid  hard  cases,  be  so  used  as  to  violate 
those  principles.  It  is  to  be  recollected, 
that  it  is  an  exception  to  the  general  rule 
of  evidence,  supjiosed  to  be  extremely 
important  and  necessary ;  and  unless  a 
case  is  brought  fully  within  the  reasons  of 
such  exception,  the  general  rule  must  pre- 
vail." See  6  Met.  26i-266.  See  also 
Marsh  v.  Jones,  6  Washb.  378. 

1  Eex  V.  Rowley,  1  Mood.  Cr.  Cas. 
111. 

-  See  Cornell  v.  Green,  10  Serg.  &  K. 
14,  16,  where  this  point  is  brietiy,  but 
powerfully  discussed,  by  Mr.  Justice  Gib- 
son. See  also  Miles  v.  O'llara,  -1  Binn. 
108;  Caton  v.  Lenox,  5  Randolph,  31,  30; 
Rex  V.  Rowley,  1  Mood.  Cr.  C.  Ill; 
Chess  V.  Chess,  17  Serg.  &  R.  409,  411, 
412;  Jackson  v.  Bailey,  2  Johns.  17;  2 
Russ.  on  Crimes,  638  [683],  (od  Am.  ed.); 
Sloan  V.  Somers,  1  Spencer's  R.  66;  Gar- 
rett V.  Johnson,  11  G.  &  J.  28;  Canney's 
case,  9  Law  »l\eporter,  408 ;  'I'he  State  v. 
Hooker,  2  Washb.  658;  Gildersleeve  v. 
Caraway,  10  Ala.  R.  260;  Gould  v.  Craw- 
ford, 2  Barr.  89;  Wagers  v.  Dickey,  17 
Ohio  R.  439  ;  [United  States  r.  INIacomb, 
5  McLean,  286 ;  Emery  r.  Eowler,  39 
Maine,  326  ;  Young  c.  Dearborn,  2  Fos- 
ter, 372;  Williams  v.  Willard,  23  Vt.  369; 
Van  Buren  v.  Cockburn,  14  Barb.  118; 
Jones  V.  Wood,  16  I'eim.  State  R.  25; 
Riggins  r.  Brown,  12  Geo.  271;  Walker 
r.  Walker,  14  lb.  242;  Davis  v.  Stite, 
17  Ala.  354;  Clealand  r.  llucy,  18  lb.  343; 
Kcndrick  v.  State,  10  Humph.  479 ;  supra, 
§  101a.] 


194 


LAW   OF   EVIDENCE. 


[part  II. 


was  said  on  the  pai-ticiikrsub[cct  which  lie  is  called  to  prove,  If 
he  can  state  only  what  was  said  on  that  subject  by  the  deceased, 
on  his  examination  in  chief,  without  also  giving  the  substance 
of  what  he  said  upon  it  in  his  cross-examination,  it  is  inad- 
missible.^ 

§  166.  "What  the  deceased  witness  testified  may  be  proved  hy 
anif  person,  who  will  swear  from  his  own  memory ;  or  by  notes 
taken  by  any  person,  who  will  swear  to  their  accuracy ;  ^  or, 
perhaps,  from  the  necessity  of  the  case,  by  the  judge^s  own  Twtes, 
where  both  actions  are  tried  before  the  same  judge ;  for  in  such 
case,  it  seems  the  judge,  from  his  position,  as  well  from  other 
considerations,  cannot  be  a  witness.^  But,  except  in  this  case  of 
necessity,  if  it  be  admitted  as  such,  the  better  opinion  is,  that  the 
judge's  notes  are  not  legal  evidence  of  what  a  witness  testified 
before  him ;  for  they  are  no  part  of  the  record,  nor  is  it  his  official 
duty  to  take  them,  nor  have  they  the  sanction  of  his  oath  to  their 
accuracy  or  completeness.*     But  in  chancery,  when  a  new  trial 


1  Wolf  V.  Wyeth,  11  Serg.  &  R.  149 ; 
Gildersleeve  v.  Caraway,  10  Ala.  R.  260. 
[See  Rhine  v.  Robinson,  27  Penn.  State 
R.  30.] 

2  Mayor  of  Doncaster  v.  Day,  3  Taunt. 
267 ;  Chess  v.  Chess,  17  Serg.  &  R.  409. 
The  witness,  as  has  been  stated  in  a  pre- 
ceding note,  must  be  able  to  testify,  from, 
In^nM^lt;!,'^!!!^  jjlopc.  that  deceased  was 
sworn  as  a  witncs.^,  tlie  matter  or  thing 
which  he  was  called  to  prove,  and.  the 
substance  of  what  he  stated  ;  after  which 
liis  notes  may  be  admitted.  Sloan  v. 
Somers,  1  Spencer,  N.  J.  R.  66 ;  supra,  § 
165,  note  (2). 

8  Glassford  on  Evid.  602;  Tait  on 
Evid.  432;  Regina  v.  Garard,  8  C.  &  P. 
595;  n;//-a,  §  249. 

*  Miles  V.  O'Hara,  4  Binn.  108;  Foster 
V.  Shaw,  7  Serg.  &  R.  156;  Jix  parte 
Leannouth,  6  Madd.  R.  113;  Reg.  v. 
Phimmer,  8  Jur.  922,  per  Gurney,  B. ; 
Livingston  v.  Cox,  8  Watts  &  Serg.  61. 
Courts  expressly  disclaim  any  power  to 
compel  the  production  of  a  judge's  notes. 
ScouguU  r.  Campbell,  1  Chitty,  R.  283; 
Graham  r.  Bowliam,  Id.  284,  note.  And 
if  an  apjilication  is  made  to  amend  a  ver- 
dict b}-  tlie  judge's  notes,  it  can  be  made 
onlv  to  the  judge  himself,  before  wiiom 
the"' trial  was"had.  Ibid.  2  Tidd's  Pr.  770, 
933.  Wliere  a  part}',  on  a  new  trial  being 
granted,  procured,  at  great  expense,  copies 
of  a  short-liand  writer's  notes  of  the  evi- 
dence given  at  the  former  trial,  for  the 
amount  of  whicli  he  claimed  allowance  in 
the  final  taxation  of  costs ;    the  claim  was 


disallowed,  except  for  so  much  as  would 
have  been  the  expense  of  waitmg  on  the 
judge,  or  his  clerk,  for  a  copy  of  his  notes ; 
on  the  groimd  that  the  latter  would  have 
sutHced.  Crea.se  v.  Barrett,  1  Tyrw.  & 
Grang.  112.  But  this  decision  is  not  con- 
ceived to  afreet  the  question,  whether  tiie 
judges's  notes  would  have  been  admissible 
before  another  judge,  if  objected  to.  In 
Regina  v.  Bird,  5  Cox,  C.  C.  11 ;  2  Eng. 
Law  and  Ecj.  Rep.  444,  the  notes  of  the 
judge,  before  whom  a  former  indictment 
had  been  tried,  were  admitted  without  ob- 
jection, for  the  purpose  of  showing  what 
beatings  were  proved  at  that  trial,  in  order 
to  support  the  plea  of  autrefois  a<quil.  In 
New  Brimswick,  a  judge's  notes  have  been 
held  admissible,  though  objected  to,  on 
the  ground  that  they  were  taken  under 
the  sanction  of  an  oath,  and  that  such  has 
been  the  practice.  Doe  r.  Murray,  1  Al- 
lan, 216.  But  in  a  recent  case  in  England, 
on  a  trial  for  perjury,  the  notes  of  the 
judge,  before  whom  the  false  evidence 
was  given,  being  offered  in  jn-oof  of  that 
part  of  the  case,  Talfourd,  J.,  refused  to 
admit  them  ;  observing,  that  "  a  judge's 
notes  stood  in  no  other  position  than  any- 
body else's  notes.  They  could  only  be 
used  to  refresh  the  memory  of  the  party 
taking  them.  It  was  no  doubt  unusual  to 
produce  the  judge  as  a  witness,  and  would 
be  highly  inconvenient  to  do  so;  but  that 
did  not  make  his  notes  evidence."  Regina 
V.  Child,  6  Cox,  C.  C.  197,  203.  [See  also 
ILiff'  V.  Bennett,  4  Sanford's  Sup.  Ct. 
120.] 


CHAP,  X.]        OF   WITNESSES   SUBSEQUENTLY   DISQUALIFIED.  195 

is  ordered  of  an  issue  sent  out  of  chancery  to  a  court  of  common 
law,  and  it  is  snggcsted  that  some  of  the  witnesses  in  the  former 
trial  are  of  advanced  age,  an  order  may  be  made  that,  in  the  event 
of  their  death  or  inability  to  attend,  their  testimony  may  be  read 
from  the  judge's  notcs.^ 

§  167.  The  effect  of  an  interest  subsequently  acquire^  by  thel 
witness,  as  laying  a  foundation  for  the  admission  of  proof  of  his 
former  testimony,  remains  to  be  considered.  It  is  in  general  true, 
that  if  a  person,  who  has  knowledge  of  any  fact,  but  is  under  no 
obligation  to  become  a  witness  to  testify  to  it,  should  afterwards 
become  interested  in  the  subject-matter  in  which  that  fact  is  in- 
volved, and  his  interest  should  be  on  the  side  of  the  party  calling  1 
him,  he  would  not  be  a  competent  witness  until  the  interest  is  ' 
removed.  If  it  is  releasable  by  the  party^  he  must  release  it.  If 
not,  the  objection  remains  ;  for  neither  is  the  witness,  nor  a  third 
person,  compellable  to  give  a  release  ;  though  the  witness  may 
be  compelled  to  receive  one.  And  the  rule  is  the  same  in  regard 
to  a  subscribing  witness,  if  his  interest  was  created  by  the  act  of 
the  party  calling  him.  Thus,  if  the  charterer  of  a  ship  should 
afterwards  communicate  to  the  subscribing  witness  of  the  charter- 
party  an  interest  in  the  adventure,  he  cannot  call  the  witness  to 
prove  the  execution  of  the  charter-party  ;  nor  will  proof  of  his 
handwriting  be  received ;  for  it  was  the  party's  own  act  to  destroy 
the  evidence.^  It  is,  however,  laid  down,  that  a  witness  cannot, 
by  the  subsequent  voluntary  creation  of  an  interest,  without  the  i 
concurrence  or  assent  of  the  party,  deprive  him  of  the  benefit  of 
his  testimony .3  But  this  rule  admits  of  a  qualification,  turning  ; 
upon  the  manner  in  which  the  interest  was  acquired.  If  it  were 
acquired  wantonly,  as  by  a  wager,  or  fraudulently,  for  the  purpose 
of  taking  oif  his  testimony,  of  which  the  participation  of  the  ad- 
verse party  would  generally  be  proof,  it  would  not  disqualify  him. 

But  "  the  pendency  of  a  suit  cannot  prevent  third  persons  from 
transacting  business,  bond  fide,  with  one  of  the  parties  ;  and,  if  an 
interest  in  the  event  of  the  suit  is  thereby  acquired,  the  common 
consequence  of  law  must  follow,  that  the  person  so  interested 

1  Hargrave  v.  Ilargrave,  19  Jur.  957.  ^  1  Stark.  Evid.  118 ;  Barlew  r.  Vow- 

2  Hovill  V.  Stephenson,  5  Bing.  493;  ell,  Skin.  686;  George  i'.  Pierce,  cited  by 
Hamilton  i.  Williams,  1  Ilayw.  139;  John-  BuUer,  J.,  in  3  T.  R.  37;  Rex  v.  Fox,  1 
son  V.  Knight,  1  N.  Car.  Law  Rep.  93 ;  1  Str.  052 ;  Long  v.  Baillie,  4  Serg.  &  R. 
Murph.  293;  Bennett  r.  Robinson,  3  Stew.  222;  Burgess  v.  Lane,  3  Greenl.  166; 
&  Port.  227,237;  SchaU  i;.  Miller,  5  Whart.  Jackson  v.  Rumsey,  3  Johns.  Cas.  234, 
156.  237 ;  iufra,  §  418. 


? 


ii 


196  LAW   OF   EVIDENCE.  [PART   II. 

cannot  be  examined  as  a  witness  for  tluit  party,  from  whose  suc- 
cess he  will  necessarily  derive  an  advantage."  ^  Therefore,  where, 
in  an  arlion  against  one  of  several  underwriters  on  a  policy  of 
insurance,  it  appeared  that  a  subsequent  underwriter  luid  paid, 
upon  the  plaintilFs  promise  to  refund  the  money,  if  the  defendant 
in  the  suit  should  prevail ;  it  was  held  that  he  was  not  a  competent 
witness  for  the  defendant  to  prove  a  fraudulent  concealment  of 
facts  by  the  plaintiff,  it  being  merely  a  payment  by  anticipation, 
of  his  own  debt  in  good  faith,  upon  a  reasonable  condition  of  repay- 
ment.- xVnd  as  the  interest  which  one  party  acquires  in_tl]C_tostl-  - 
mony  of  another  is  liable  to  the  contingency  of  being  defeated 
Ijy  a  subsequcirr  interest  of  the  witness  in  the  subject-matter, 
created  bona  fide,  in  the  usual  and  lawful  course  of  business,  the 
same  principle  would  seem  to  apply  .to  an  interest  arising  by  opera- 
tion of  law,  upon  the  happening  of  an  uncertain  event,  such  as 
the  death  of  an  ancestor,  or  the  like.  But  though  the  interest 
which  a  party  thus  acquires  in  the  testimony  of  another  is  liable 
to  be  affected  by  the  ordinary  course  of  human  alfairs,  and  of 
natural  events,  the  witness  being  under  no  obligation,  on  that 
account,  either  to  change  the  course  of  his  business,  or  to  abstain 
from  any  ordinary  and  lawful  act  or  enqdoyment ;  yet  it  is  a  right 
of  which  neither  the  witness,  nor  any  other  person,  can  by  volun- 
tary act  and  design  deprive  him,  "Wherever,  therefore,  the  subse- 
quent interest  of  the  witness  has  been  created  either  wantonly, 
or  in  bad  faith,  it  docs  not  exclude  him  ;  and  doubtless  the  partici- 
pation of  the  adverse  party  in  the  creation  of  such  interest  would, 
if  not  explained  by  other  circumstances,  be  very  strong  pi'imd  facie 

1  3  Campb.  381,  per  Ld.  Elleiiborough.  ^  Forrester  v.  Pigou,  3  Campb.  380  ;  1 
Tlie  case  of  Bent  y.  Raker,  3  T.  K.  27,  M.  &  S.  U,  s.  c;  Phelps  v.  Kiley,  G  Conn, 
seems  to  have  l)een  determined  on  a  simi-  266.  In  Burjjess  v.  Lane,  3  Greenl.  165, 
lar  principle,  as  applied  to  the  oj)posite  the  witness  liad  voluntarily  entereil  into 
state  of  facts  ;  the  subsequent  interest,  ac-  an  aiireeinent  with  the  defendant,  against 
(piired  ])y  the  l)r()ker,  hein^-  regarded  as  whom  he  had  an  action  jjeiidiiig  in  another 
aflected  with  had  faith  on  the  part  of  the  court,  that  that  action  should  abide  the 
assured,  who  objected  to  his  admission,  event  of  the  other,  in  which  he  was  now 
The  distinction  taken  by  Lord  Ellenbor-  called  as  a  witness  for  the  jilaintitf;  and 
ough  was  before  the  Supreme  Court  of  the  court  held,  that  it  did  not  lie  with  the 
the  Uinicd  States  in  Winship  r.  Tlieliank  defendant,  who  Mas  party  to  that  agrce- 
of  the  I'niieil  States,  5  Peters,  52'.),  541,  ment,  to  objoct  to  his  adnussibility.  But 
542,  545,  546,  552,  but  no  decision  was  it  is  observable,  that  that  a.iireeinent  was 
liad  upon  the  question,  the  court  being  not  made  in  discharge  of  any  real  or  sup- 
equally  dividi'd.  But  the  same  doctrine  posed  obligation,  as  in  Forrester  v.  Pigou; 
was  afterwards  discussed  and  recognized,  but  was  on  a  new  subject,  was  uncalled 
as  "founded  on  the  plainest  reasons,"  in  for,  and  i)urely  voluntary;  and  therefore 
Eastman  v.  Winship,  li  Pick.  44;  10  sid)jected  the  adverse  i)arty  to  the  imputa- 
Wend.  1G2,  164,  ace.  tiou  of  bad  faith  in  making  it. 


CHAP.  X.]        OF   WITNESSES   SUBSEQUENTLY   DISQUALIFIED.  197 

evidence  of  bad  faith ;  as  an  act  of  the  witness,  uncalled  for,  and 
out  of  the  ordinary  course  of  business,  would  be  regarded  as 
wanton.^ 
\  §  168.  If,  in  cases  of  disqualifying  interest,  the  witness  has 
freviouMhj  ijiven  a  deposition  in  the  cause,  the  deposition  may  be 
read  in  chancery,  as  if  he  were  since  deceased,  or  insane,  or  other- 
wise incapacitated.  It  may  also  bo  read  in  the  trial,  at  law,  of 
an  issue  out  of  chancery.  In  other  trials  at  law,  no  express 
authority  has  been  found  for  reading  the  deposition ;  and  it  has 
been  said,  that  the  course  of  practice  is  otherwise  ;  but  no  reason 
is  given,  and  the  analogies  of  the  law  are  altogether  in  favor  of 
admitting  the  evidence .^  And  as  it  is  hardly  possible  to  conceive^ 
a  reason  for  the  admission  of  prior  testimony  given  in  one  form,! 
which  does  not  apply  to  the  same  testimony  given  in  any  othen 
form,  it  would  seem  clearly  to  result,  that  where  the  witness  i^ 
subsequently  rendered  incompetent  by  interest,  lawfully  acquired,! 
in  good  faith,  evidence  may  be  given  of  what  he  formally  testified 
orally,  in  the  same  manner  as  if  he  were  dead ;  and  the  same' 
principle  will  lead  us  farther  to  conclude,  that,  in  all  cases  where 
the  party  has,  without  his  own  fault  or  concurrence,  irrecoverably! 
lost  the  power  of  producing  the  witness  again,  whether  from! 
physical  or  legal  caused,  he  may  offer  the  secondary  evidence  of 
what  he  testified  in  the  former  trial.  If  the  lips  of  the  witness 
are  sealed,  it  can  make  no  difference  in  principle,  whether  it  be 
by  the  finger  of  death,  or  the  finger  of  the  law.  The  interest 
of  the  witness,  however,  is  no  excuse  for  not  producing  him  in 
court ;  for  perhaps  the  adverse  party  will  waive  any  objection  on 
that  account.  It  is  only  when  the  objection  is  taken  and  allowed, 
that  a  case  is  made  for  the  introduction  of  secondary  evidence. 
[  *  Our  author  seems,  in  the  preceding  sections,  to  have  stated 
some  points  more  loosely  than  is  consistent  with  his  usual  accuracy. 
"We  see  no  more  reason  why  the  judge,  presiding  at  a  former  trial, 
should  be  exempted  from  verifying  his  minutes,  if  required  by 

1  See  infra,  §  418,  where  the  subject  is  Pennsj'lvania.      See  also  1  Stark.  Evid. 

again  considered.  264,  265 ;  1  Smith's  Chan.  Pr.  344  ;  Gosse 

■^  This  is  now  the  established  practice  v.  Tracy,  1  P.  W.  287  ;  2  Vern.  699,  s.  c. ; 
in  chancery ;  Gresley  on  Evid.  366,  367  ;  Andrews  v.  Palmer,  1  Ves.  &  B.  21 ;  Lut- 
and  in  Chess  v.  Chess,  17  Serg.  &  K.  412,  trell  r.Keynell,  1  Mod.  284;  Jones  i\  Jones, 
it  was  conceded  by  Tod,  J.,  that  the  rea-  1  Cox,  184;  Union  Bank  v.  Knapp,  3  Pick, 
eon  and  principle  of  the  rule  applied  with  108,  109,  per  Putnam,  J. ;  Wafer  v.  Hem- 
equal  force,  in  trials  at  law  ;  though  it  was  ken,  9  Kob.  203.  [See  also  Scammon  v, 
deemed  in  that  case  to  have  been  settled  Scammon,  33  N.  H.  52,  58.J 
otherwise,  by  the  course  of  decisions  in 

17* 


198  LAW    OF   EVIDENCE.  [PART   II. 

oath,  and  by  cross-examination,  than  any  other  witness.  Our  own 
minutes  have  always  been  used,  in  such  cases,  by  consent ;  but 
we  never  supposed  they  possessed  any  legal  verity.  And  we  have 
never  supposed  the  rule  of  admitting  the  testimony  of  a  deceased 
witness,  at  a  former  trial,  extended  to  all  cases  where  the  witness, 
for  any  cause,  could  not  be  produced.  It  will  be  found,  we  believe, 
that  that  rule  applies  to  the  deposition  of  a  witness  de  bene  esse,  or 
inpeiyetuam,  and  not  to  his  testimony  upon  former  trials.] 


A' 


CHAP.  XI.]  OF   ADMISSIONS.  199 


CHAPTEE    XL 

OF   ADMISSIONS. 

[*  §  169.  The  ground  upon  which  admissions  against  interest  are  received. 

170.  Distinction  between  confessions  and  admissions.     Admissions. 

171.  Those  of  the  party  of  record,  and  of  such  as  are  in  same  interest,  admissible. 

172.  If  the  party  of  record  have  no  interest,  his  admissions  will  not  afi'ect  the  party 

really  in  interest. 

173.  The  American  courts  adhere  more  strictly  to  the  rule  than  the  English. 

174.  The  admissions  of  one  joint  party  binds  all,  in  the  absence  of  fraud. 

175.  Tlie  Enghsh  courts  regard  the  inhabitants  of  a  parish  as  parties ;  but  the 

rule  seems  otherwise  iu  America. 

176.  Community  of  interest  required  to  make  admissions  of  joint  party  receiva- 

ble. 

177.  The  joint  interest  must  be  shown  as  the  basis  of  admitting  declarations  of 

one  party  against  others. 

178.  The  same  rule  apphes  to  the  answer  of  one  defendant  in  chancery,  as  against 

others. 

179.  Admissions  of  a  representative  party  evidence  only  against  himself,  and  as 

affecting  matters  for  wliich  he  is  responsible. 

180.  Admissions  of  the  party  in  interest  generally  receivable.  , 

181.  The  declarations  of  third  parties  admissible,  where  they  are  the  real  party  to 

the  question. 

182.  A  party  bound  by  declarations  of  one  to  whom  he  refers. 

183.  Declarations  of  interpreter  the  same  as  of  the  party. 

184.  How  far  declarations  of  party  referred  to  are  conclusive. 

185.  Declarations  of  wife  bind  husband  to  extent  of  her  agency. 

186.  The  solemn  admissions  of  attorney  bind  the  party,  but  none  others. 

187.  Admissions  of  principal  bind  surety  within  the  transaction. 

188.  Judgment  against  surety,  with  notice  to  principal,  binds  him. 

189.  The  admissions  of  those  in  privity  with  party  bind  him. 

190.  Declarations  of  the  assignor  good  evidence  against  assignee. 

191.  It  is  not  necessary  to  prove  admissions  by  the  party  making  them. 

192.  Offers  to  induce  compromise,  or  without  prejudice,  not  admissible. 

193.  Constraint,  short  of  legal  duress,  no  ground  of  rejecting  admissions  in  civil 

causes. 

194.  Incidental  admissions  as  much  evidence  as  those  more  direct. 

195.  Admissions  may  be  implied,  from  the  character  one  assumes.     So  too  from 

pleadmgs  in  an  action  inter  alios. 

196.  So  also  trom  the  conduct  of  the  party. 

197.  Acquiescence  in  a  claim  concludes  the  party. 

^y*,  Silence  no  ground  of  presumption,  unless  the  occasion  fairly  demand  some- 
thing to  be  said.    Pleadings. 


200  LAW   OF   EVIDENCE.  [PART  II. 

§  ins.  Presumi)tions  of  acquiescence  fVoni  constant  access  to  documents. 

190.  Great  caution  required  in  making  inferences  from  silence. 

200.  So  also  in  regard  to  oral  admissions  of  party. 

201.  The  whole  admission  must  be  received. 

202.  Answer  in  chancery,  the  whole  taken  together.     All  not  equally  reliable. 

203.  Oral  a<lmissi()ns  will  not  supjily  tiie  place  of  writings. 

204.  Estoppels  in  pais,  how  lar  conclusive. 

205.  Payment  of  money  into  court  admits  the  cause  of  .action  to  that  extent. 

-    20G.  Court  may  reUeve  counsel  from  concessions  made  by  surprise,  accident,  or 
mistake. 

207.  Party  estopped  to  deny  what  he  has  induced  other  parties  to  act  upon. 

208.  It  is  not  important  whether  it  be  really  the  fact  or  not. 

209.  Admissions  not  acted  upon  by  others  may  be  controverted. 

210.  Many  admissions  held  conclusive  on  grounds  of  public  policy. 

211.  Estoppels  by  deed  not  conclusive  upon  strangers. 

212.  Receipts,  accounts  rendered,  and  accounts  stated,  &c.,  not  conclusive.] 

§  169.  Under  the  head  of  exceptions  to  the  rule  rejecting 
hearsay  evidence,  it  has  been  usual  to  treat  of  admissions  and  corv- 
fessions  by  tlie  party,  considering  them  as  declarations  against 
his  interest,  and  therefore  probal)ly  true.  But  in  regard  to  many 
admissions,  and  especially  those  implied  from  conduct  and  as- 
snmcd  character,  it  cannot  be  supposed  that  the  party,  at  the 
time  of  tlie  principal  declaration  or  act  done,  believed  himself 
to  be  speaking  or  acting  against  his  own  interest ;  but  often  the 
contrary.  Such  evidence  seems,  therefore,  more  properly  admis- 
sible as  a  substitute  for  the  ordinary  and  legal  proof,  eitlicr  in 
virtue  of  the  direct  consent  and  waiver  of  the  party,  as  in  the  case 
of  explicit  and  solemn  admissions,  or  on  grounds  of  public  policy 
and  convenience,  as  in  the  case  of  those  implied  from  assumed 
character,  acquiescence,  or  conduct.^  It  is  in  this  light  that  con- 
fessions, and  admissions  are  regai'ded  by  the  Roman  law,  as  is 
stated  by  Mascardus.  Illud  igitur  in  primis,  ut  hinc  potissimum 
exordia^;  non  est  ipiorandum,  quod  etsi  confessioni  inter  probationum 
species  locum  in  prcesentia  tribuerimus  ;  cuncti  tamen  fere  Dd.  unan- 
imes  sunt  arbitrati,  ipsam  potius  esse  ab  onere  jjrobandi  relevationem, 
quam  proprie  probationem?'      Many  admissions,   however,   being 

1  See  supra,  %  27.  former  as  of  very  little  and  often  of  no 

2  Mascard. '  De  Probat,  vol.  1,  Quncst.  weight,  tmless  corr()l)orated.  and  tiie  latter 
7,  n.  1,10,  11;  Menochius,  De  Prresump.,  as  generally,  if  not  always,  conclusive, 
lib.  1,  Qiiics.  61,  n.  6  ;  Alciatus,  I)e  Vvx-  even  to  the  overthrow  of  tlie  prwsiimptio 
sump.,  Pars.  2,  n.  4.  The  Roman  law  dis-  juris  et  de  jure;  thus  constituting  an  ex- 
tinguishes, with  great  clearness  and  pre-  ception  to  tlie  conclusiveness  of  this  class 
cision,  between  confessions  extra  judicium,  of  presumptions.  But  to  give  a  confes- 
and  confessions  in  judicio ;   treating  the  sion  this  eflect,  certain  things  are  essen- 


CHAP.  XT.]  OF   ADMISSIONS.  201 

made  by  tliird  persons,  arc  receivable  on  mixed  grounds ;  partly 
as  belonging  to  the  res  (/estce,  partly  as  made  against  the  interest 
of  the  person  making  them,  and  partly  because  of  some  privity 
with  him  against  whom  they  are  offered  in  evidence.  The  whole 
subject,  therefore,  properly  falls  under  consideration  in  this  con- 
nection. 

§  170.  In  our  law,  the  term  admission  is  usually  applied  to 
civil  trWmacti6nS"?^^l6  those  matters  oTlact.in  crimim 


which  do  not  involve  criminal  intent j,  the  term  confession  being 
gen,gj;{aillyi!-rQg:t!rEi9fe^ 3q  achnowledam£nts  qf  guilt.  We  shall  there- 
fore treat  them  separately,  beginning  with  admissions.  The  rules 
of  evidence  are  in  both  cases  the  same.  Thus,  in  the  trial  of 
Lord  Melville,  charged,  among  other  things,  with  criminal  misap- 
plication of  moneys  received  from  the  exchequer,  the  admission 
of  his  agent  and  authorized  receiver  was  held  sufficient  proof  of 
the  fact  of  his  receiving  the  public  money ;  but  not  admissible  to 
establish  the  charge  of  any  criminal  misapplication  of  it.  The 
law  was  thus  stated  by  Lord  Chancellor  Erskine  :  "  This  first  step 
in  the  proof"  (namely,  the  receipt  of  the  money),  "  must  advance 
by  e^•idence  applicable  alike  to  civil,  as.  to  criminal  cases ;  for 
a  fact  must  be  established  by  the  same  evidence,  whether  it  is  to 
be  followed  by  a  criminal  or  civil  consequence ;  but  it  is  a  totally 
different  question,  in  the  consideration  of  criminal,  as  distinguished 
from  civil  justice,  how  the  noble  person  now  on  trial  may  be 
affected  by  the  fact,  when  so  established.  The  receipt  by  the 
paymaster  would  in  itself  involve  him  civilly,  but  could  by  no 
possibility  convict  him  of  a  crime."  ^ 

§  171.  We  shall  first  consider  the  person,  whose  admissions 
may  be  received.  And  here  the  general  doctrine  is,  that  the 
declarations  of  a  partylo  the  record  or  of  one  identified  in  interest 
with  him,  are,  as  against  such  party,  admissible  in  evidence.^    If 

tial,  which  Mascardus  cites  out  of  Tan-  tions  of  the  parties,  which  are  not  put  in 

(jied :  —                                        '  issue  by  the  pleadings,  and  wliicli  there 

,^  .              ^       .                         i--^^  was   not,   therefore,    any   opportunity  of 

Major,  sponte,sciens,  contra  se,ubi  JUS  Jit;  explaining  or   disproving.      Copeland    v. 

^ec7)atnra,favor,hsJusverepllgnet,ethost^s.  rp^^uii^jj^^  7  Q^^^y.  ^  pj„    350^  373.   ^^jg. 

Mascard.  ub.  sup.  n.  15;  Vid.  Dig.  lib.  42,  tin  v.  Chambers,  6  Clark  &  Fin.  1 ;    At- 

tit.  2,  de  confessis ;    Cod.  lib.  7,  tit.  59 ;  wood    v.    Small,   Id.    284.     But    m    the 

Van  Leeuwen's  Comm.,  book  v.,  ch.  21.  United  States  this  rule  has  not  been  adoj)- 

1  29  Howell's  State  Trials,  col.  764.  ted  ;    and  it  is  deemed  sufficient  if  the 

2  Spargo  I'.  Brown,  9  B.  &  C.  935,  per  proposition  to  be  established  is  stated  in 
Bayley,  J. ;  infra,  §§  180,  203.  In  the  the  bill,  without  stating  the  particular 
court  of  chancery,  in  England,  evidence  kind  of  evidence  by  which  it  is  to  be 
is  not  received  of  admissions  or  declara-  proved.    See  Smith  v.  Buruliam,  2  Sumn. 


202 


LAW    UF    EVIDEN'CE. 


[part   II. 


tlioy  proceed  from  a  stranger,  and  cannot  be  brought  home  to  the 
party,  they  are  inadmissible,  unless  upon  some  of  the  other 
grounds  already  considered. ^  Thus,  the  admissions  of  a  payee 
of  a  negotiable  promissory  note,  not  overdue  when  negotiated, 
cannot  be  received  in  an  action  by  the  indorsee  against  the  maker, 
to  impeach  the  consideration,  there  being  no  identity  of  interest 
between  him  and  the  j)laintiir.2 

§  172.  This  general  rule,  admitting  the  declarations  of  a  party 
to  the  record  in  evidence,  applies  to  all  cases  whpre  the  party  has 
any  interest  in  the  suit,  whether  others  are  joint  parting  on  the 
same  side  with  him,  or  not,  and  howsoever  the  interest  may 
ap{)car,  and  whatever  may  be  its  relative  amount.^  But  where 
the  party  sues  alone,  and  has  no  interest  in  the  matter,  his  name 
being  used,  of  necessity,  by  one  to  whom  he  has  assigned  all  his 
interest  in  the  subject  of  the  suit,  though  it  is  agreed  that  he 
cannot  be  permitted,  by  his  acts  or  admissions,  to  disparage  the 
title  of  his  innocent  assignee  or  vendee,  yet  the  books  are  not  so 
clearly  agreed  in  the  mode  of  restraining  him.  That  chancery 
will  always  protect  the  assignee,  cither  by  injunction  or  otherwise, 
is  very  certain ;  and  formerly  this  was  the  course  uniformly  pur- 


612 ;  Brantlon  v.  Cabiness,  10  Ala.  R.  156  ; 
Story,  Equity  Plead.  §  26oa,  and  note 
(1),  where  this  subject  is  fully  discussed. 
And  in  Enj>land,  the  rule  has  recently 
been  (jiialifieil,  so  far  as  to  admit  a  written 
admission  by  the  defendant  of  liis  liability 
to  the  plaintiff,  in  the  matter  of  the  pend- 
in<^  suit.  jMalcolm  r.  Scott,  3  Hare,  63 ; 
McMaiion  v.  Burcliell,  1  Coop.  Cas.  temp. 
Cottenham,  475;  7  Law  Kev.  209.  See 
the  "cases  collected  by  Mr.  Cooper  in  his 
note  ajipended  to  thattase.  It  seems,  that 
pleadings,  whetlier  in  equity  or  at  com- 
mon law,  are  not  to  be  treated  as  positive 
alle<jations  of  the  truth  of  the  facts  therein 
slated,  for  all  purposes ;  but  only  as  state- 
ments of  the  case  of  the  party,  to  be  ad- 
mitted or  denied  by  the  ojiposite  side,  and 
if  denied,  to  be  proved,  and  ultimately  to 
be  submitted  to  judicial  decision.  Boileau 
V.  Kutliii,  2  Kxch.  665.  [Answers  of  a 
party  to  a  suit  to  interrogatories  filed  in  the 
ordinary  mode  of  practice  are  competent 
evidence  aiiainst  him  of  the  facts  stated 
therein,  in  another  suit,  although  the  issues 
in  the  two  suits  be  diflerent.  Williams  v. 
Cheney,  3  Gray,  215  ;  Judd  v.  Gibbs,  lb. 
539.  See  Church  o.  Shelton,  2  Curtis,  C. 
C.  271  ;  State  r.  Littlefield,  3  R.  I.  124.] 
'  1  S/7>m,'8§  12K,  141,  147,  156.  There 
must  be  some  evidence  of  the  identity  of 


the  person  whose  admissions  are  oflFered 
in  evidence,  with  the  party  in  question. 
Thus,  where  the  witness  asked  fbr  the  de- 
fendant by  name,  at  his  lodgings,  and  a 
person  came  to  the  door  professing  to  be 
the  one  asked  for;  the  witness  being  un- 
acquainted with  the  defendant's  person 
then  and  since ;  this  was  held  sufficient  to 
admit  the  conversation  which  then  was 
had  between  the  witness  and  this  person, 
as  being,  prima  facie,  the  language  of  the 
defendant.  Reynolds  v.  Staines,  2  C.  &  K. 
745.  [Admissions  of  a  party  may  be  proved, 
although  they  relate  to  a  written  instru- 
ment. Loomis  i>.  Wadham,  8  Gray,  556.] 
•2  Barough  v.  White,  4  B.  &  C.  325; 
Bristol  V.  Dan,  12  Wend.  142. 

^  Bauerman  v.  Radenius,  7  T.  R.  663 ; 
2  Esp.  653,  s.  c.  In  this  case  the  con- 
signees brought  an  action  in  the  name  of 
the  consignor,  against  the  ship-master,  for 
a  damage  to  the  goods,  occasioned  by  his 
negligence  ;  and  without  supposing  some 
interest  to  remain  in  the  consignor,  the 
action  could  not  be  maintained.  It  was 
on  this  ground  that  Lawrence,  J.,  placed 
the  decision.  See  also  Norden  v.  William- 
son, 1  Taunt.  378 ;  Mandeville  v.  Welch, 
5  Wheat.  283,  286 ;  Dan  et  ul.  v.  Brown,  4 
Cowen,  483,  492 ;  [Black  v.  Lamb,  1  Beas- 
ley,  108.] 


CHAP.  XI.]  OF  ADMISSIONS.  203 

sued ;  the  admissions  of  a  party  to  the  record,  at  common  law, 
being  received  against  him  in  all  cases.  But,  in  later  times,  the 
interests  of  an  assignee,  suing  in  the  name  of  his  assignor,  have 
also,  to  a  considerable  extent,  been  protected,  in  tlie  courts  of 
common  law,  against  the  effect  of  any  acts  or  admissions  of  the 
latter  to  his  prejudice.  A  familiar  example  of  this  sort  is  that 
of  a  receipt  in  full,  given  by  the  assignor,  being  nominal  plaintiff, 
to  the  debtor,  after  the  assignment;  which  the  assignee  is  per- 
mitted to  impeach  and  avoid,  in  a  suit  at  law,  by  showing  the 
previous  assignment.^ 

§  173.  But  a  distinction  has  been  taken  between  such  admis- 
sions as  these,  which  are  given  in  evidence  to  the  jury,  under  the 
general  issue,  and  are,  therefore,  open  to  explanation,  and  con- 
trolling proof;  and  those  in  mo7'e  solemn  form,  such  as  releases 
which  are  specially  pleaded,  and  operate  by  way  of  estoppel ;  in 
which  latter  cases  it  has  been  held,  that,  if  the  release  of  the 
nominal  plaintiff  is  pleaded  in  bar,  the  courts  of  law,  sitting  in 
bank,  will  admin'ister  equitable  relief  by  setting  aside  the  plea,  on 
motion ;  but  that,  if  issue  is  taken  on  the  matter  pleaded,  such 
act  or  admission  of  the  nominal  plaintiff  must  be  allowed  its  effect 
at  law  to  the  same  extent  as  if  he  were  the  real  plaintiff  in  the 
suit.2  The  American  courts,  however,  do  not  recognize  this  dis- 
tinction ;  but  where  a  release  from  the  nominal  plaintiff  is  pleaded 
in  bar,  a  prior  assignment  of  the  cause  of  action,  with  notice 
thereof  to  the  defendant,  and  an  averment  that  the  suit  is  prose- 
cuted by  the  assignee  for  his  own  benefit,  is  held  a  good  replica- 
tion.^  Nor  is  the  nominal  plaintiff  permitted  by  the  entry  of  a 
retraxit,  or  in  any  other  manner  injuriously  to  affect  the  rights 
of  his  assignee  in  a  suit  at  law.* 

1  Henderson  et  al.  v.  Wild,  2  Campb.  &  A.  96 ;  Craib  v.  D'Aeth,  7  T.  R.  670, 
561.  Lord  Ellenborough,  in  a  previous  note  (b) ;  Lcigb  v.  Leigh,  IB.  &  P.  447 ; 
case  of  the  same  kind,  thought  himself  not  Anon.  1  Salk.  260  ;  Payne  v.  Rogers, 
at  hberty,  sitting  at  Nisi  Prius,  to  over-  Doug.  407  ;  Skaife  v.  Jackson,  8  B.  &  C. 
rule   the   defence.      Alner  v.   George,   1  421. 

Campb.  392;  Frear  vy  Evertson,  20  Johns.  ^  Mandeville  v.  Welch,  5  Wheat,  277, 
142.  See  also  Payne  v.  Rogers,  Doug.  283;  Andrews  v.  Beeker,  1  Johns.  Cas. 
407  ;  Winch  v.  Keeley,  1  T.  R.  619  ;  Cock-  411 ;  Raymond  v.  Squire,  11  Johns.  47  ; 
shott  V.  Bennett,  2  T.  R.  763  ;  Lane  v.  Littlefield  v.  Story,  3  Johns.  425 ;  Dawson 
Chandler,  3  Smith,  R.  77,  83 ;  Skaife  v.  v.  Coles,  16  Johns.  51;  Kimball  v.  Hun- 
Jackson,  3  B.  &  C.  421  ;  Appletont'.  Boyd,  tington,  10  Wend.  675  ;  Owings  v.  Low,  5 
7   Mass.    131 ;     Tiermen    v.    Jackson,    5  Gill  &  -Johns.  134. 

Peters,    580 ;     Sargeant    v.    Sargeant,    3  *  Welch  v.  Mandeville,  1  Wheat.  233. 

Washb.  371 ;  Head  y.  Shaver,  9  Ala.  791.  "By   the   common   law,   rhoses   in    action 

2  Alner  v.  George,  1  Campb.  395,  per  were  not  assignable,  except  to  the  crown. 
Ld.  Ellenborough ;  Gibson  v.  Winter,  5  B.  The  civil  law  considers  them  as,  strictly 


204 


LAW   OP   EVIDENCE. 


[part  II. 


§  174.  Though  the  admissions  of  a  party  to  the  record  arc 
generally  receivable  in  evidence  against  him,  yet  where  there 
arc  several  parties  on  the  same  side,  the  admissiojis  of  one  arcjiflL- 
admitted  to^affcct  the  others,  who  may  happen  to  be  joined  withi,, 
him,  unless  there  is  some  joint  interest,  or  privity  in  design 
between  them;^  although  the  admissions  may,  in  proi)er  cases,  be 
received  against  the  person  who  made  them.  Thus,  in  an  action 
against  joint  makers  of  a  note,  if  one  suffers  judgment  by  default, 
\  his  signature  must  still  be  proved,,  against  the  other .^  And  even 
where  there  is  a  joint  interest,  a  release,  executed  by  one  of 
several  plaintiffs,  will,  in  a  clear  case  of  fraud,  be  set  aside  in 
a  court  of  law.^  But  in  the  absence  of  fraud,  if  the  parties  have 
a  joint  interest  in  the  matter  in  suit,  whether  as  plaintiffs  or 
defendants,  an  admission  made  by  one  is,  in  general,  evidence 
Vgainst  all.^     They  stand  to  each  other,  in  this  respect,  in  a  relation 


speaking,  not  assip;nable  ;  but,  by  tbe  in- 
vention of  a  tiction,  the  Roman  juriscon- 
sult.s  contrived  to  attain  this  object.  Tlie 
creditor  who  wislied  to  transfer  liis  riglit 
of  action  to  another  person,  constituted 
him  liis  attorney,  or  procurator  in  rem  suam 
as  it  was  called ;  and  it  was  stipulated 
that  the  action  should  be  brought  in  tlie 
name  of  the  assignor,  but  for  the  benefit 
and  at  the  expense  of  tlie  assignee. 
I'olhier  de  Vente,  No.  550.  After  notice 
to  the  debtor,  this  assignment  o])orated  a 
complete  cession  of  tlie  debt,  and  invali- 
dated a  jiayment  to  any  other  person  than 
the  assignee,  or  a  release  from  any  other 
person  than  him.  Id.  110,  554;  Code 
Napoleon,  liv.  3,  tit.  6  ;  De  la  Vente,  c.  8, 
§  1690.  The  court  of  chancery,  imitat- 
ing, in  its  usual  .s])irit,  the  civil  law  in 
this  particular,  disregarded  the  rigid  strict- 
ness of  the  common  law,  and  jjrotected 
the  rights  of  the  assignee  of  choses  in 
action.  This  liberality  was  at  last  adopted 
by  the  courts  of  common  law,  who  now 
consider  an  assignment  of  a  chose  in 
action  as  substantially  valid,  only  preserv- 
ing, in  certain  cases,  the  form  of  an  action 
connnenced  in  the  name  of  the  assignor, 
the  beneficial  interest  and  control  of  the 
suit  being,  however,  considered  as  com- 
pletely vested  in  the  assignee,  as  prnnira- 
tor  in  rf'in  sikiiii.  See  Master  v.  Miller,  4 
T.  U.  340  ;  Andrews  r.  Beecker,  1  .Johns. 
Cas.  411;  Bates  v.  New  York  Insurance 
Company,  3  Johns.  Cas.  242 ;  Wardell  v. 
Eden,  1  .lohns.  532,  in  notis ;  Carver  v. 
Tracy,  3  Johns.  420  ;  Raymond  r.  Squire, 
11  Johns.  47  ;  Van  Vechlen  v.  Greves,  4 
Jolms.  406  ;  Weston  v.  Barker,  12  Johns. 


276."  See  the  reporter's  note  to  1  Wheat. 
237.  But  where  tiig  nominal  i)laintiti'was 
constituted,  by  the  jiarty  in  interest,  his 
agent  for  negotiating  the  contract,  and  it 
is  expressly  made  with  him  alone,  he  is 
treated,  in  an  action  u\u)u  such  contract, 
in  all  respects  as  a  party  to  the  cause  ;  and 
any  defence  against  him  is  a  defence,  in 
that  action,  against  the  ccatui  que  trust, 
suing  in  his  name.  Therefore,  where  a 
broker,  in  whose  name  a  ])()licy  of  insur- 
ance under  seal  was  effected,  brought  an 
action  of  covenant  thereon,  to  which  pay- 
ment was  pleaded  ;  it  was  held  that  pay- 
ment of  the  amount  of  loss  to  tlie  broker, 
b5'  allowing  him  credit  in  account  for  that 
sum,  against  a  balance  for  premiums  due 
from  him  to  the  defendants,  was  a  good 
payment,  as  between  the  iilaintitf  on  the 
record  and  the  defendants,  and,  therefore, 
an  answer  to  the  action.  Gibson  v.  Win- 
ter et  al.  5  B.  &  Adol.  DO.  This  case, 
however,  may,  with  equal  and  perhaps 
greater  propriety,  be  referred  to  the  law 
of  ageiuy.  See  Richardson  r.  Anderson, 
1  Cainpl).  43,  note  ;  Story  on  Agency,  § 
413,  420-434. 

1  See  supra,  §§  111,  112 ;  Dan  et  al. 
V.  Brown,  4  Cowc«,  483,  4',l2 ;  liex  v. 
Hard  wick,  11  I<:asf,  578,  58'.*,  per  Le 
Blanc,  J. ;  Whitcomb  v.  Whiting,  2  Doug. 
652. 

-  Gray  v.  Palmer,  1  Esp.  135.  See 
also  Sheriff  v.  Wilks,  1  East,  48. 

■^  Jones  et  al.  v.  Herbert,  7  Taunt.  421  ; 
Loring  et  al.  v.  Brackett,  3  Tick.  403 ; 
Skaife  et  al.  v.  Jackson,  3  B.  &  C.  421 ; 
Henderson  et  al.  v.  Wild,  2  Campb.  5G1. 

■*  Such  was  the  doctrine  laid  down  by 


CIIA]\  XI.] 


OF   ADMISSIONS. 


205 


similar  to  that  of  existing  copartners.  Thus,  also,  the  act  of 
making  a  partial  payment  within  six  years,  by  one  of  several  joint 

kers  of  a  promissory  note,  takes  it  out  of  the  statute  of  limita- 
tions.^B  And  where  several  were  both  legatees  and  executors  in 
a  will,  and  also  appellees  in  a  question  upon  the  probate  of  the 
will,  the  admission  of  one  of  them,  as  to  facts  wliich  took  place 
at  the  time  of  making  the  will,  showing  that  the  testatrix  was 
imposed  upon,  was  held  receivable  in  evidence  against  the  validity 
of  the  will.-  And  where  two  were  bound  in  a  single  bill,  the 
admission  of  one  was  held  good  against  both  defendants,^     "^ 

§  175.  In  settlement  cases,  it  has  long  been  held  that  declara- 
tions by  rated  parisJiioners  are  evidence  against  the  parish ;  for 
they  are  parties  to  the  cause,  though  the  nominal  parties  to  the 


Ld.  Mansfield  in  T\niitcomb  v.  ^Yhitin2:,  2    out  of  the  statute  of  limitations  against 


DoufT-  652.  Its  propriety,  and  the  extent 
of  its  application  have  been  much  dis- 
cussed, and  sometimes  questioned  ;  but  it 
seems  now  to  be  clearly  established.  See 
Perham  v.  Kaynal,  2  Bing.  306  ;  Burleigh 
V.  Stott,  8  B.  &  C.  36 ;  Wyatt  v.  Hodson 
8  Biug.  30'J ;  Brandram  v.  Wharton,  1  B. 
&  A.  467  ;  Holme  v.  Green,  1  Stark.  R. 
488.  See  also,  accordingly.  White  v.  Hale, 
3  Pick.  2'.tl;  Martin  v.  Root,  17  Mass. 
222;  Hunt  v.  Brigham,  2  Pick.  581; 
Prye  v.  Barker,  4  Pick.  382;  Beitz  v. 
Fuller,  1  McCord,  541 ;  Johnson  v.  Beards- 
lee,  1  Johns.  3 ;  Bound  i'.  Lathrop,  4 
Conn.  336;  Coit  v.  Tracy,  8  Conn.  268, 
276,  277  ;  Getchell  *;.  Heald,  7  Greeul.  26  ; 
Owings  V.  Low,  5  Gill  &  Johns.  144 ; 
Patterson  v.  Choate,  7  Wend.  441 ;  Mcln- 
tire  V.  Oliver,  2  Hawks,  209 ;  Cady  o. 
Shepherd,  11  Pick.  400;  Van  Reims.dyk 
I'.  Kane,  1  Gall.  635,  636 ;  [Barrick  v. 
Austin,  21  Barb.  241 ;  Camp  v.  Dill,  27 
Ala.  553.]  But  see  Bell  v.  Morrison,  1 
Peters,  351.  But  the  admission  must  be 
distinctly  made  by  a  party  still  liable  upon 
the  note ;  otlierwise  it  will  not  be  bind- 
ing against  the  others.  Therefore,  a  pay- 
ment appropriated,  by  the  election  of  the 
creditor  only,  to  the  debt  in  question,  is 
not  a  sutficient  admission  of  that  debt,  for 
this  purpose.  Holmes  v.  Green,  uh  siij>. 
Neither  is  a  payment,  received  under  a 
dividend  of  the  effects  of  a  bankrupt  pro- 
misor. Brandram  v.  Wharton,  tib  sup. 
In  this  last  case,  the  opposing  decision  in 
Jackson  v.  Fairbank,  2  11.  151.  340,  was 
considered  and  strongly  disapproved  ;  but 
it  was  afterwards  cited  by  Holroyd,  J., 
as  a  valid  decision,  in  Burleigh  >•.  Stott, 
8  B.  &  C.  36.  The  admission  where  one 
of  the  promisors  is  dead,  to  take  the  case 


him,  must  have  been  made  in  his  lifetime; 
Burleigh  v.  Stott,  supra;  Slatter  v.  Law- 
son,  1  B.  &  Ad.  396 ;  and  by  a  party  origi- 
nally liable  ;  Atkins  v.  Ti-edgold,  2  B.  & 
C.  23.  This  effect  of  the  admission  of 
indebtment  by  one  of  several  joint  promi- 
sors, as  to  cases  barred  by  the  statute  of 
limitations,  when  it  is  merely  a  verbal  ad- 
mission, without  part  payment,  is  now 
restricted  in  England,  to  the  party  making 
the  admission,  by  Stat.  9,  Geo.  IV.  c.  14, 
(Lord  Tenterden's  Act.)^  So  in  Massa- 
clitisetts,  by  Gen.  Stat.  ch.  155,*  §  14,  16; 
and  in  Vennant,  Rev.  St.  ch.  58,  §§  23,  27. 
The  application  of  this  doctrine  to  part- 
ners, after  the  dissolution  of  tlie  partner- 
ship, has  already  been  considered.  Supra, 
§  112,  note.  Wlijether  a  written  acknowl 
edgment,  made  by  one  of  several  partners, 
stands  upon  difierent  ground  from  that  of 
a  similar  admission  hy  one  of  several  joint 
contractors,  is  an  open  question.  Clark  v 
Alexander,  8  Jur.  496,  498.  See  post,  vol. 
2,  §§  441,  444 ;  Pierce  v.  Wood,  3  Poster, 
520. 

1  Burleigh  v.  Stott,  8  B.  &  C.  36 ; 
Munderson  r.  Reeve,  2  Stark.  Evid.  484 ; 
Wvatt  r.  Hodson,  8  Bing.  309  ;  Cliippen- 
daie  V.  Thurston,  4  C.  &  P.  98  ;  1  INI.  &  M. 
411,  s.  c;  Pease  v.  Hirst,  10  B.  &  C.  122. 
But  it  must  be  distinctly  shown  to  be  a 
jiaymcnt  on  account  of  the  particular  debt. 
Holme  ('.  Green,  1  Stark.  R.  488. 

-  Atkins  V.  Sanger  et  uL,  1  Pick.  192. 
See  also  Jackson  v.  Vail,  7  Wend.  125; 
Osgood  V.  The  Manhattan  Co.,  3  Cowen, 
612. 

3  Lowe  V.  Boteler  et  ah,  4  Har.  & 
IMcllen.  346 ;  Vicary's  case,  1  Gilbert, 
Evid.  by  Lotft,  p.  59,  note. 


18 


20G  LAW    OF    EVIDEN^CE.  [PART    11. 

appeal  l»c  clnii'cliwardens  and  overseers  of  the  poor  of  the  parish.^ 
The  same  prineiple  is  now  ajiplied  in  England  to  all  other  prosecu- 
tions against  towns  and  parishes,  in  respect  to  the  declarations  of 
ratable  inJiahltants,  they  being  su))stantially  parties  to  the  record.^ 
Nor  is  it  necessary  first  to  call  the  inhabitant,  and  show  that  he 
refuses  to  be  examined,  in  order  to  admit  his  declarations.^  And 
the  same  principle  would  seem  to  apply  to  the  inhal)itants  of 
towns,  counties,  or  other  territorial  political  divisions  of  this  coun- 
try, who  sue  and  are  prosecuted  as  inhabitants,  eo  nomine,  and 
are  termed  quasi  corporations.  Being  parties,  personally  liable, 
their  declarations  are  admissible,  though  the  value  of  the  evidence 
may,  from  circumstances,  be  exceedingly  light.*  [*We  believe  the 
practice  is  not  general,  in  the  American  states,  to  admit  the  dec- 
larations of  the  members  of  a  corporation,  as  evidence  against  the 
corporation  itself.  And  it  seems  to  us,  that  upon  principle  they 
are  clearly  inadmissible.  There  is  no  rule  of  law  better  settled 
than  that  the  admissions  of  a  shareholder  will  not  bind  the  corpo- 
ratioii.  Nor  will  the  admission  of  a  director  or  agent  of  a  private 
corporation  bind  the  company,  except  as  a  part  of  the  res  gestce. 
And  it  will  make  no  difference  that  the  action  is  in  the  corporate 
name  of  the  President  and  Directors ;  that  does  not  make  them 
parties  in  person.  And  we  see  no  more  reason  why  the  admis- 
sions o?  the  inhabitants  of  a  town  or  parish  should  bind  the 
municipality,  l)ccausc  the  action  happens  to  be  in  form,  in  the 
name  of  such  inhabitants,  than  that  all  the  admissions  or  declara- 
tions of  the  people  at  large  should  be  evidence  against  the  public 
prosecutor  in  criminal  proceedings,  when  they  are  instituted  in 
the  name  of  The  People,  which  we  believe  would  be  regarded  as 
an  absurdity,  by  every  one.     We  conclude,  therefore,  that  in  no 

1  Eex  y.  Inliabitants  of  Ilardwick,    11  enacted.     LL.  Tmno7i<  (TJev.  Code,  1839). 

East,  579.     See  snimi,  §§  128,  129.  ch.  81,  §  18  ;  Mas.mchitsdts,  Kev.  Stat.  ch. 

•^  Kegina  v.  Adderbury,  5  Ad.  &  El.  94,  §  54;  Delaware  (Rev.  Co.lc,  1829),  p. 

187,  N.  8.  444  ;    New    York,  Kev.  Stat.  vol.    1,  pp. 

«'  Rex  V.  Inhabitants  of  Whitley  Lower,  408,  439  (8d  edit.) ;  Maine,  Rev.  Stat.  1840, 

1  M.  &  S.  t)87;  Rex  v.  Inhabitiuits  of  ch.  115,  §75;  New  Hampshire,  Rev.  Stat. 
Woburn,  10  East,  395.  1842,  ch.  188,  §  12;  Peimsi/lvania,  Dunl. 

*  11  East,  58t),  per  Ld.  Ellenborongh ;  Dig.  pp.  215,  913,  1019,  1165;  MicMjan, 

2  Stark.  Evid.  580.  The  statutes  render-  Rev.  Stat.  184G,  ch.  102,  §  81.  In  several 
iiig  7/((/s/  corjiorators  competent  witnesses  States,  tlie  interest  of  inhabitants,  merely 
(.see  54  (Jeo.  III.  c.  170;  3  &  4  Vict.  c.  25)  as  such,  has  been  deemed  too  remote  and 
are  not  understood  as  interfering  with  the  contingent,  as  well  as  too  minute,  to  dis- 
rule  of  evidence  respecting  admissions,  qualify  them,  and  they  have  been  held 
Phil,  and  Am.  on  Evid.  395,  and  n.  (2) ;  competent  at  common  law.  Eustis  v. 
1  I'hil.  Evid.  375,  n.  (2).  In  some  of  the  Parker,  1  New  Ilamp.  273;  Cornwell  v. 
United  States,  similar  statutes  have  been  Isham,  1  Day,  35;  Fuller  v.  Hampton,  5 


CHAP,  XI.]  OF   ADMISSIONS.  207 

such  case  can  tlic  admission  or  declaration  of  a  corporator  be  fairly 
regarded  as  evidence  against  the  corporation.^] 

§  176.  It  is  a  joint  interest^  and  not  a  mere  community  of  interest, 
that  renders  such  admfssions   receivable.     Therefore  the  admis-: 
sions  of  one  executor  are  not  received,  to  take  a  case  out  of  the; 
statute   of  limitations,  as   against  his   co-executor.^     Nor  is   an'  ;,V 
acknowledgment  of  indebtmcnt  by  one  executor  admissible  against 
his  co-executor,  to  establish  the  original  demand.^     The  admission 
of  the  receipt  of  money,  by  one  of  several  trustees,  is  not  received 
to  charge  the  other  trustees.^     Nor  is   there   such  joint  interest 
between  a  surviving  promisor,  and  the  executor  of  his  co-promisor, 
as  to  make  the  act  or  admission  of  the  one  sufficient  to  bind  the      i 
other .^     Neither  will  the  admission  of  one,  who  was  joint  promisor  j 
with  a  feme  sole,  be  received  to  charge  her  husband,  after  the  j 
marriage,  in  an  action  against  them  all,  upon  a  plea  of  the  statute  I 
of  limitations.^     For  tlie  same   reason,  namely,  the   absence   of 
a  joint  interest,  the  admissions  of  one  tenant  in  common  are  not 
receivable  against  his  co-tenant,  though  both  are  parties  on  the 
same  side  in  the  suit.'''     Nor  are  the  admissions  of  one  of  several 
devisees  or  legatees  admissible  to  impeach  the  validity  of  the  will, 
where  they  may  effect  others,  not  in  privity  with  him.^     Neither  j 
are  the  admissions  of  one  defendant  evidence  against  the  other,/ 
in  an  action  on  the  case  for  the  mere  negligence  of  both.^ 

§  177.  It  is  obvious  that  an  apparent  joint  interest  is  not  suffi- 

• 

Conn.  416;   Falls  r.  Belknap,  1  Johns.  Rawl.  75;  Hathaway  v.  Haskell,  9  Pick. 

486  ;  Blooclgooa  v.  Jamaica,  12  Johns.  284 ;  42. 

ex  parte  Kip,  1  Paige,   613  ;    Corwein  r.  ^  Pittnam  v.   Foster  et  al.  1  B.  &  C. 

Hames,  11  Jolins.  76  ;  Orange  v.  Spring-  248. 

fieki,  1  Southard,  186  ;  State  v.  Davidson,  ^  Dan  et  al.  v.  Brown  et  al.,  4  Cowen, 

1  Bayley,  35;  Jonesborougli  v.  McKee,  2  483,  492.     And  see  Smith  v.  Vincent,  15 

Yerger,   167;    Gass   v.   Gass,  3   Humph.  Conn.  R.  1. 
278,  285.     See  infra,  §  331.  «  Hauberger  v.  Root,  6  Watts  &  Serg. 

1  [*  Watertown    v.   Cowen,  4   Paige,  431. 
510 ;   Burlington  v.  Calais,  1  Vt.  R.  385 ;  »  Daniels   v.  Potter,  1  M.  &  M.  501 ; 

Low  V.  Perkins,  10  Vt.  R.  532.]  supra,  §  111.    Neither  is  there  such  privity 

^  TuUock  i\  Dunn,  R.  &  M.  416.     Qu.  among  the  members  of  a  board  of  public 

and  see  Ilammon  v.  Huntley,  4  Cowen,  ofKcers,  as  to  make  the  admissions  of  one 

41)3.     But  the  declarations  of  an  e.xecutor  binding  on  all.     Lockwood  v.  Smitli  et  al. 

or  administrator  are   admissible   against  5  Day,  309.     Nor  among  several  indorsers 

liiin,  in  any  suit  by  or  against  him  in  that  of    a    promissory    note.      Siaymaker    v. 

character.     Faunce  v.  Gray,  21  Pick.  243.  Gundacker's  Ex'r,  10  Serg.  &  Rawl.  75. 

^  Hammon  v.  Huntley,  4  Cowen,  493 ;  Nor  between  executors  and  heirs  or  devi- 

James  r.  Hackley,  16  Johns.  277;    For-  sees.    Osgood  u.  Manhattan  Co.,  3  Cowen, 

syth  V.  Ganson,  5  Wend.  558.  611.      [*'rhe   same   rule   applies    to    the 

*  Davies  v.  Ridge  et  al.,  3  Esp.  101.  admissions    of   co-defendants    in    actions 

5  Atkins  V.  Tredgold  et  al.,  2  B.  &  C.  of   trover.      Edgerton    v.  Wolf,  6    Gray, 

23 ;  Slater  r.  Lawson,  1  B.  &  Ad.  396 ;  Slay-  453.] 
maker  o.  Gundacker's  Ex'r,  10  Serg.  & 


208 


LAW    OF    EVIDENCE. 


[part  ir. 


cieitl  t(j  i-L-ndcr  the  admissions  of  one  party  receivable  against  his 
eoni]jauious,  where  the  reality  of  that  interest  is  the  point  in  con- 
troversi/.  A  f(jun(latiuii  must  first  be  hiid,  liy  showing,  primd 
faeie,  that  a  joint  interest  exists.  Therefore,  in  an  action  against 
several  joint  makers  of  a  promissory  note,  the  execution  of  which 
was  the  point  in  issue,  the  admission  of  his  signature  only  by  one 
defendant  was  held  not  sullicient  to  entitle  the  ])laintiir  to  recover 
against  him  and  the  others,  though  theirs  had  been  proved ;  the 
point  to  be  proved  against  all  being  a  joint  promise  Ijy  all.^  And 
where  it  is  sovight  to  charge  several  as  partners,  an  admission  of 

(the  fact  of  partnership  by  one  is  not  receivable  in  evidence  against 
.any  of  the  others,  to  prove  the  partnership.  It  is  only  after  the 
partnership  is  shown  to  exist,  l)y  i)roof  satisfactoiy  to  the  judge, 
^hat  the  admission  of  one  of  the  parties  is  received,  in  order  to 
affect  the  others.^  If  they  sue  upon  a  promise  to  them  as  partners, 
the  admission  of  one  is  evidence  against  all,  even  though  it  goes 
to  a  denial  of  the  joint  riglit  of  action,  the  partnership  being  con- 
clusively admitted  l)y  the  form  of  action.-^ 

§  178.  In  general,  the  answer  of  one  defendant  in  chancery 
cannot  be  read  in  evidence  against  his  co-defendant ;  the  reason 
l»eing,  that,  as  there  is  no  issue  between  them,  there  can  have 
been  no  opportunity  for  cross-examination.*  But  this  rule  does 
not  apply  to  cases  where  tlie  other  defendant  claims  througli  him, 
whose  answer  is  otlercd  in  evidence  ;  nor  to  cases  where  they  have 
a  ji)int  interest,  either  as  partners,  or  otherwise,  in  the  trans- 
action.^ Wlierever  the  confession  of  any  party  would  be  good 
evidfMico  iVi'iiiust  niiother,  in  such  case,  his  .answer,  a  fortiori,  may 
be  read  a''aiii>l  tlic  lalter.^- 


1  Gray  v.  Palmer  et  al.  1  Esp.  135; 
[Boswell  V.  Blacktnan,  12  (ieo.  5'.»1.] 

-  Nichols  V.  Dowding  et  id.  1  Stark.  R. 
81 ;  Grant  (-•.  Jackson  et  al.  I'cakc's  Cas. 
204  ;  JJurjiess  v.  Lane  et  al.  3  Greenl.  IGo; 
Grafton  Bank  ?;.  Moore,  13  N.  Ilainp.  99. 
See  siijira,  §  112;  yw.s/,  vol.  2,  §  481;  La- 
tham i\  Kenniston,  13  N.  llamp.  203 ; 
AVhitney  v.  Ferris,  10  Johns.  66  ;  Wood 
V.  Hraddick,  1  Taunt.  104 ;  Sangster  v. 
Mazzaredo  et  al.  1  Stark.  R.  161;  Van 
Rcimsdyk  r.  Kane,  1  Gall.  63.5;  Har- 
ris V.  Wilson,  7  Wend.  57 ;  Buckman 
V.  Barnum,  15  Conn.  R.  68;  [AUcott  v. 
Strong,  9  Cush.  323;  Dutton  v.  Wood- 
man, 11).  255 ;  Rich  v.  Flanders,  39  N. 
Ilamp.  304.] 

^  Lucas  et  al.  v.  I)e  La  Cour,  1  M.  &  S. 
249. 


4  Jones  V.  Tuberville,  2  Ves.  11  ; 
Morse  v.  Royall,  12  Ves.  355,  360;  Leeds 
?A  The  Marine  Ins.  Co.  of  Alexandria, 
2  Wheat.  380  ;  Gresley  on  Eq.  Evid.  24  ; 
Field  i\  Holland,  6  Cranch,  8;  Clark's 
E.x'rs  ('.  Van  Ueimsdyk,  9  Cranch,  153; 
Van  Reimsdyk  v.  Kane,  1  Gall.  630; 
Parker  v.  Morrell,  12  Jur.  2-53 ;  2  C.  &.  K. 
599 ;  Morris  v.  Nixon,  1  How.  s.  c.  Rep. 
48. 

5  Field  V.  Holland,  6  Cranch,  8,  24 ; 
Clark's  E.x'rs  r.  V^an  Peimsdyk,  9  Cranch, 
153,  1.56;  Oshorn  v.  United  States  Bank, 
9  Wheat.  738,  832;  Christie  v.  Bishop,  1 
Barb.  Ch.  R.  105,  116. 

6  Van  Reimsdyk  o.  Kane,  1  GaU.  630, 
635. 


CHAP.  XI.]  OP   ADMISSIONS.  209 

§  179.  The  admissions,  which  are  thus  receivable  in  evidence, 
must^as^wc  liave  seen,  be  those  of  a  j[)crs6n  havin^g~at  the_tij«ie 
some  interest  in  the  matter,  afterwards  in  controversy  in  the  suit 
to  wliic.li  hp.  ij^jji,  p?\rtj.     The  admissions,  therefore,  of  a  guardiaii^ 
or  of  an  executor  or  administrator^  made  before  lie  was  completely 
clothed  with  that  trust,  or  of  a  procJiein  amy,  made  before  the 
commencement  of  the   suit,  cannot   be   received,  either   against 
the  ward  or  infant  in  the  one  case,  or  against  himself,  as  the  rep- 
resentative of  heirs,  devisees,  and  creditors,  in  the  other ;  ^  though 
it  may  bind  the  person  himself,  when  he  is  afterwards  a  party 
isuo  jure,  in  another  action.     A  solemn  admission,  however,  made 
in  good  faith,  in  a  pending  suit,  for  the  purpose  of  that  trial  only, 
is  governed  by  other  considerations.     Thus,  the  plea  of  nolo  con-  \ 
tendere,  in  a  criminal  case,  is  an  admission  for  that  trial  only.  ! 
One  object  of  it  is,  to  prevent  the  proceedings  being  used  in  any , 
other  place  ;  and  therefore  it  is  held  inadmissible  in  a  civil  action  I 
against  the  same  party. ^     So,  the  answer  of  the  guardian  of  an  i 
infant  defendant  in  chancery  can  never  be  read  against  the  infant ' 
in  another  suit ;  for  its  office  was  only  to  bring  the  infant  into  \ 
court  and  make  him  a  party .^     Bvit  it  may  be  used  against  the  i 
guardian,  when  he  afterwards  is  a  party  in  his  private  capacity,  ' 
for  it  is  his  own  admission  upon  oath.'^     Neither  can  the  admission  I 
of  a  married  tvoman.  answering  jointly  with  her  husband,  be  after-  | 
wards  read  against  her,  it  being  considered  as  the  answer  of  the  I 
husband  alone.^ 

§  180.  We  are  next  to  consider  the  admissions  of  persons  who 

1  Webb  i».  Smith,  R.  &M.  106;  Eraser  Tenney  y.    Evans,    14    N.    Hamu.    343. 

V.  Marsh,  2  Stark.  41 ;  Cowling  v.  Ely,  Id.  [*Legge  ;;.  Edwards,  2  L.  J.  eh.  125.] 

366  ;  I'lant  v.  McEwen,  4  Conn.  544.     So,  '^  Guild  v.  Lee,  3  Law  Keporter,  p.  433. 

the  admissions  of  one,  before  he  became  So,  an  admission  in  one  plea  cannot  be 

assignee  of  a  bankrujjt,  are  not  receivable  called    in    aid    of    the    issue   in   anolher. 

against  him,  where  suing  as  assignee.  Een-  Stracey  v.  Blake,  3  C.  M.  &  R.  108 ;  Jones 

wick  V.  Tliornton,  1  M.  &  M.  51.     But  see  r.  Flint,  2  P.  &  D.  5',)1;  Gould  on  Plead- 

Smith  V.  Morgan,  2  M.  &  Rob.  257.     Nor  ing,  432,  433;  Mr.  Rand's  note  to  Jaclcson 

is  tlie  statement  of  one  partner  admissible  v.  Stetson,  15  Mass.  58. 

against  the  others,  in  regard  to   matters  ^  Eggleston    v.    Speke,   alias   Petit,    3 

whicli  were  transacted  before  lie  became  Mod.  258,  259;   Hawkins  v.  Luscombe,  2 

a  partner  in  the  house,  and  in  whicli  he  Swanst.    392,   cases    cited    in    note    (a) ; 

had  no  interest  prior  to  that  time.     Catt  Story  on   Eq.   Pi.   668;    Gresley  on  Eq. 

j;.  Howard,  3  Stark.  R.  3.    In  trover  by  an  Evid\  24,323;   Mills  r.  Dennis,' 3  Johns, 

infant  suing  by  his  guardian,  the  state-  Ch.  367. 

nients  of  the  guardian,  tending  to   show  *  Beasly  v.  Magrath,  2  Sch.    &  Lefr. 

that  the  property  was  in  fact  his  own,  are  34;  Gresley  on  Eq.  Evid.  323. 

admissible  against  the  plaintiff,  as  being  ^  Hodgson    v.   Merest,   9   Price,    563; 

the  declarations  of  a  party  to  the  record.  Elston  v.  Wood,  2  My.  &  K.  678. 

18* 


210 


LAW    OF    EVIDENCE. 


[part  II. 


are  not  parties  to  the  record,  but  yet  arc  interested  in  the  sulject- 
matter  of  the  suit.  The  Law,  in  regard  to  this  source  of  evidence, 
looks  chiefly  to  the  real  parties  in  interest,  and  gives  to  their 
admissions  tlic  same  weight,  as  though  they  were  parties  to  the 
record.  Thus  the  admissions  of  the  cestui  que  trust  of  a  bond;^ 
those  of  the  persons  interested  in  a  policy  effected  in  another's 
nuuio,  for  their  benefit  ;2  those  of  the  shii>owners,  in  an  action  by 
the  master  for  freight;^  those  of  the  indemnifying  creditor,  in  an 
action  against  the  sheriff;'*  those  of  the  de})uty-shcriff,  in  an  action 
against  the  high-slieriff  for  the  misconduct  of  the  deputy  ;^  are  all 
receivable  against  the  party  making  tliem.  And,  in  general,  the 
admissions  of  any  party  represented  by  another,  are  receivable  in 
evidence  against  his  representative.^     But  lie're,  aTso~,"it  is  to  be 


1  Hanson  r.  Fiirker,  1  Wils.  257.  See- 
also  Harrison  i\  Vallance,  1  Bing.  45.  But 
tlie  declarations  of  the  cestui  que  trust  are 
admissible,  onh-  so  far  as  his  interest  and 
that  of  the  trustee  are  identical.  Doe  v. 
Wainwright,  3  Nev.  &  P.  S'.JS.  And  the 
nature  of  his  interest  must  be  shown,  even 
though  it  be  admitted  that  he  is  a  cestui 
que  trust.  May  v.  Taylor,  6  M.  i.^  Gr.  261. 
[The  admissions  of  a  silent  partner,  not  a 
j)arty  to  record,  may  be  given  in  evidence. 
Weed  r.  Kellogg,  6  McLean,  4L]  [*  But 
the  admissions  of  one  of  several  resluis  que 
trust  of  real  estate  are  not  ailmissil)le  to 
defeat  the  title  of  the  trustee.  Tope  v. 
Devereux,  5  Gray,  4()U.] 

^  Bell  V.  Ansley,  1(3  East,  141,  143. 

8  Smith  w.  Lyon,  3  Campb.  4t')5. 

*  Dowdon  V.  Fovvle,  4  Campb.  38 ; 
Dyke  r.  Ahlridgc,  cited  7  T.  11.  tlG5 ;  11 
Kast,  5S4 ;  Young  v.  Smith,  6  Ksp.  121 ; 
Uarwood  v.  Keyes,  1  M.  &  Bob.  204; 
Proctor  V.  Lainson,  7  C.  &  P.  C2'.t. 

"  The  admissions  of  an  under-sheriff 
are  not  receivable  in  evidence  against  the 
slieriff,  unless  they  tend  to  charge  himself, 
lie  being  the  real  party  in  the  cause.  He 
is  not  regarded  as  the  general  officer  of 
the  sheriff',  to  all  intents.  Snowball  v. 
Gooilricke,  4  B.  &  Ad.  541 ;  though  the 
a<lmissibility  of  his  declarations  has  some- 
times been  placed  on  that  ground.  Drake 
V.  Sykes,  7  T.  K  113.  At  other  times 
they  have  been  received  on  the  ground, 
that,  being  liable  over  to  the  sheriff",  he  is 
the  real  ])arty  to  the  suit.  Yabsley  v. 
Doblc,  1  Ld.  Kaym.  I'.JO.  And  where  the 
sheritf  has  taken  a  general  bond  of  indem- 
nity from  tjic  under-oflicer,  and  has  given 
him  notice  of  tlie  ])endeMcy  of  the  suit, 
and  required  him  to  defend  it,  the  latter  is 
in  tact  the  real  party  in  interest,  whenever 


the  sheriff  is  sued  for  his  default ;  and  his 
admissions  are  clearly  receivable,  on  prin- 
ciple, when  made  against  himself.  It  has 
elsewhere  been  said,  that  the  declarations 
of  an  under-sheriff  are  evidence  to  charge 
the  sheriff"  only  where  his  acts  might  be 
given  in  evidence  to  charge  him  ;  and 
then,  rather  as  acts  than  as  declarations, 
the  declarations  being  considered  as  part 
of  the  res  qestcv..  Wheeler  v.  Ilambright, 
9  Serg.  &  K.  S'JG,  3U7.  See  Scott  v.  Mar- 
shall, 2  Cr.  &  Jer.  238;  Jacobs  v.  Hum- 
phrey, 2  Cr.  &  Mecs.  413;  2  Tyrw.  272, 
S.  c.  But  whenever  a  person  is  bound  by 
the  record,  he  is,  for  all  purposes  of  evi- 
dence, the  party  in  interest,  and,  as  such, 
his  admissions  are  receivable  against  him, 
both  of  the  tacts  it  recites,  and  of  the 
amount  of  damages,  in  all  cases  where, 
being  liable  over  to  the  nominal  defend- 
ant, he  has  been  notified  of  the  suit,  and 
required  to  defend  it.  Clark's  Ex'rs  v. 
Carrington,  7  Cranch,  322;  Hamilton  v. 
Cutts,  4  Mass.  34'.i;  Tyler  v.  Ulmer,  12 
Mass.  1C)G  ;  Duffield  r.  Scott,  3  T.  K.  374  ; 
Kip  ?".  Brigham,  (3  Jones,  158 ;  7  Johns. 
Itj8;  Bender  !;.  Promberger,  4  Dall.  43(5. 
See  also  Carlisle  v.  Garland,  7  Bing.  298 ; 
North  (•.  Miles,  1  Campb.  389 ;  Bowsher 
?;.  Calley,  1  Campb.  391,  note  ;  Underbill  v. 
Wilson,  6  Bing.  697;  Bond  v.  Ward,  1 
Nott  &  McCord,  21)1 ;  Carmack  r.  The 
Couinionwealth,  5  Bimi.  181;  Sloman  v. 
Heme,  2  Esp.  695 ;  Williams  v.  Bridges, 
2  Stark.  R.  42  ;  Savage  v.  Balch,  8  (ireenl. 
27.  [Tlie  admissions  of  a  party  named  as 
an  executor  and  legatee  of  a  will,  as  Xx)  the 
imsouiulness  of  the  mind  of  the  testator, 
are  ad7nissii)le,  upon  a  probate  of  the  will. 
Ivobinson  v.  Hutchinson,  31  Vt.  44:i.| 

"  Stark.  Kvid.  26;   North  v.  Miles,  1 
Campb.  390. 


CHAP.  XI. J  OF    ADMISSIONS.  211 

observed,  that  the  declarations  or  admissions  must  have  been 
made  while  the  party  making  them  had  some  interest  in  the 
matter ;  and  they  are  receivable  in  evidence  only  so  far  as  his  own 
interests  are  concerned.  Thus,  the  declaration  of  a  bankrupt, 
made  before  his  bankruptcy,  is  good  evidence  to  charge  his  estate 
with  a  debt ;  but  not  so,  if  it  was  made  afterwards. ^  While  the 
declarant  is  the  only  party  in  interest,  no  harm  can  possibly  result 
from  giving  full  effect  to  his  admissions.  He  may  be  supposed 
best  to  know  the  extent  of  his  own  rights,  and  to  be  least  of  all 
disposed  to  concede  away  any  that  actually  belonged  to  him.  But 
an  admission,  made  after  other  persons  have  acquired  separate 
rights  in  tlie  same  subject-matter,  cannot  be  received  to  disparage 
their  title,  however  it  may  affect  that  of  the  declarant  himself. 
This  most  just  and  equitable  doctrine  will  be  found  to  apply  not 
only  to  admissions  made  by  bankrupts  and  insolvents,  but  to  the 
case  of  vendor  and  vendee,  payee  and  indorsee,  grantor  and 
grantee,  and,  generally,  to  be  the  pervading  doctrine,  in  all  cases 
of  rights  acquired  in  good  faith,  previous  to  the  time  of  making 
tlie  admissions  in  question. ^ 

§  181.  In  some  cases,  the  admissions  of  third  pei^sons,  strangers 
to  the  suit,  are  receivable.  This  arises,  when  the  issue  is  substan- 
tially upon  the  mutual  rights  of  such  persons  at  a  particular  time  ; 
in  which  case  the  practice  is,  to  let  in  such  evidence  in  general, 
as  would  be  legally  admissible  in  an  action  between  the  parties 
themselves.  Thus,  in  an  action  against  the  sheriff  for  an  escape, 
the  debtor's  acknowledgment  of  the  debt,  being  sufficient  to 
charge  him,  in  the  original  action,  is  sufficient,  as  against  the 
sheriff,  to  support  the  averment  in  the  declaration,  that  the  party 
escaping  was  so  indebted.^  So,  an  admission  of  joint  liability  by 
a  third  person  has  been  held  sufficient  evidence  on  the  part  of  the 
defendant,  to  support  a  plea  in  abatement  for  the  non-joinder  of 
such  person,  as  defendant  in  the  suit ;  it  being  admissible  in  an 
action  against  him  for  the  same  cause.^  And  the  admissions  of 
a  bankrupt,  made  before  the  act  of  bankruptcy,  are  receivable  in 

1  Bateman  v.  Bailey,  5  T.  R.  513;  Goldsboroiigh,  9  Serg.  &  E.  47;  Babb 
Smith  V.  Simmes,  1  I':sp.  330;  Deady  v.  v.  Clemson,  12  Serg.  &  R.  328;  [Infra, 
Harrison,  1  Stark.  R.  60 ;  [Infra,  §  I'JO.]  §  190.] 

2  Bartlett  v.  Delprat,  4  Mass.  702,  708.  »  gioman  v.  Heme,  2  Esp.  695 ;  Wil- 
Clarke  r.  Waite,  12  Mass.  439;  Bridge  );.  liains  v-  Bridges,  2  Stark.  R.  42;  Kemp- 
Eggleston,  14  Mass.  245,  250,  251 ;  The-  land  v.  Macauley,  Peake's  Cas.  65. 

nix  r.  Ingraham,  5  Johns.  412;  Packer  v.  *  Clay   v.   Langslow,  1    M.   &   M.  45. 

Gonsalus,  1   Serg.   &  R.  526 ;    Patton   v.     Sed  qucere,  and  see  infra,  §  395. 


212  LAW    OF   EVIDENCE.  [PART    II. 

proof  of  the  petitioning  creditor's  debt.  His  declarations,  made 
after  the  act  of  bankruptcy,  though  admissible  against  himself, 
form  an  exception  to  this  rule,  because  of  the  intervening  rights 
of  creditors,  and  the  danger  of  fraud. ^ 

§  182.  The  admissions  of  a  third  person  are  also  receivable  in 
evidence,  against  the  party  who  has  expressly  referred  another  to 
him  for  information,  in  regard  to  an  uncertain  or  disputed  matter. 
In  such  cases,  the  party  is  bound  by  the  declarations  of  tlic  person 
referred  to,  in  the  same  manner,  and  to  the  same  extent,  as  if 
Ihey  were  made  hy  himself.^  Thus,  uj)on  a  plea  of  lAene  adminis- 
travit,  where  the  executors  wrote  to  the  plaintiff,  that  if  she  wished 
for  further  information  in  regard  to  tlie  assets,  she  should  ap]»ly 
to  a  certain  merchant  in  the  city,  they  were  held  bound  by  the 
replies  of  the  merchant  to  her  inquiries  upon  that  subject.'^  So, 
in  assumpsit  for  goods  sold,  where  tlie  fact  of  the  delivery  of  them 
by  the  carman  was  disputed,  and  the  defendant  said,  "  If  he  will 
say  that  he  did  deliver  the  goods,  I  will  pay  for  them ; "  he  was 
held  bound  by  the  affirmative  reply  of  the  carman.^ 

§  183.  This  principle  extends  to  the  case  of  an  interpreter  whose 
statements  of  what  the  party  says  are  treated  as  identical  with 
those  of  the  party  himself;  and  therefore  may  be  proved  by  any 
person  who  heard  them,  without  calling  the  interpreter.^ 

§  184.  Whether  the  answer  of  a  person  thus  referred  to  is 
conclusive  against  the  party  docs  not  seem  to  have  been  settled. 

1  Hoare  v.  Coryton,  4  Taunt.  560 ;  2         ^  "\Villiams  v.  Innes,  1  Campb.  8G4. 
Rose,  158 ;  Robson  v.  Kemp,  4  Esp.  234 ;  *  Daniel  v.  Pitt,  1  Canii)b.  3(j(),  note ; 

Watts  V.  Thorpe,  1  Campb.  376 ;  Small-  6  Esp.  74,  s.  c. ;  Brock  v.  Kent,  lb. ;  Burt 

combe  V.  Barges,  McClel.  R.  45 ;  13  Price,  v.  Palmer,  5  Esp.  145;    Hood  i\  Reeve, 

136,  s.  c. ;  Taylor  v.  Kinloch,  1  Stark.  R.  3  C.  &  P.  532. 
175;  2  Stark.  R.  5'.i4;  Jarrett  v.  Leonard,  5  Fabrigas  v.  Mostyn,  11  St.  Tr.  171. 

2  M.  &  S.  265.  The  dictuin  of  Lord  Ken-  The  ca.ses  of  tlie  reference  of  a  disputcMl 
yon,  in  Dowton  v.  Cros.s,  1  Esp.  KiS,  that  lial)ility  to  the  opinion  of  legal  coun.-el, 
the  admissions  of  a  bankrupt,  made  after  and  of  a  disi)uted  fact  regarding  a  mine  to 
the  act  of  bankruptcy,  but  before  the  a  miner's  jury,  have  been  treated  as  fall- 
commission  issued,  are  receivable,  is  con-  ing  luider  this  head ;  the  decisions  being 
tradicted  in  13  I'rice,  153,  154,  and  over-  held  binding,  as  tiie  answers  of  persons 
ruled  by  that  and  the  other  cases  above  referred  to.  How  far  the  circumstance, 
cited.    See  also  Bernasconi  v.  Farebrother,  that  if  treated  as  awards,  being  in  writing, 

3  B.  &  Ai\.  372.  [*The  evidence  of  the  they  would  have  been  void  for  want  of  a 
principal  will  not  charge  the  surety,  es-  stamp,  may  have  leil  the  learned  judges 
peciaily  after  the  transaction  is  terminated,  to  consider  them  in  another  light,  does  not 
Chelmsford  Co.  v.  Demarest,  7  Gray,  1.  ajjpear.  Sybray  v.  Wliite,  1  lil.  &  \V.  435. 
But  the  admission  of  the  surety  is  good  But  in  this  country,  where  no  stamj)  is 
against  hotii  in  tiie  absence  of  collusion,  required,  they  would  more  naturally  be 
Chapel  )•.  Washburn,  11  Ind.  3U3.]  regarded    iis    awards   ui)on   parol   submis- 

'  [Turner  i'.  Yates,  16  How.  (U.  S.)  14;  sions,  and  therefore  conclusive,  unless  im- 
Cliapman  v.  Twiichell,  37  Maine,  59 ;  peached  for  causes  recognized  in  the  law 
Chadsey  v.  Greene,  24  Conn.  562.]  of  awards. 


CHAP.' XI.]  OF   ADMISSIONS.  213 

Where  the  plaintiff  had  offered  to  rest  his  claim  upon  the  defend- 
ant's affidavit,  which  was  accordingly  taken,  Lord  Kenyon  held, 
that  he  was  conclusively  bound,  even  though  the  affidavit  had 
been  false ;  and  he  added,  that,  to  make  such  a  proposition  and 
afterwards  to  recede  from  it  was  mala  fides;  but  that,  besides 
that,  it  might  be  turned  to  very  improper  purposes,  such  as  to 
entrap  the  witness,  or  to  find  out  how  far  the  party's  evidence 
would  go  in  support  of  his  casc.^  But  in  a  later  case,  where  the 
question  was  upon  the  identity  of  a  horse,  in  the  defendant's  pos- 
session, with  one  lost  by  the  plaintiff,  and  the  plaintiff  had  said, 
that  if  the  defendant  would  take  his  oath  that  the  horse  was  his, 
he  should  keep  him,  and  he  made  oath  accordingly ;  Lord  Ten- 
terden  observed,  that  considering  the  loose  manner  in  which  the 
evidence  had  been  given,  he  would  not  receive  it  as  conclusive ; 
but  that  it  was  a  circumstance  on  which  he  should  not  fail  to 
remark  to  the  jury.^  And  certainly  the  opinion  of  Lord  Tenter- 
den,  indicated  by  what  fell  from  him  in  this  case,  more  perfectly 
harmonizes  with  other  parts  of  the  law,  especially  as  it  is  opposed 
to  any  further  extension  of  the  doctrine  of  estoppels,  which  some- 
times precludes  the  investigation  of  truth.  The  purposes  of  jus- 
tice and  policy  are  sufficiently  answered,  by  throwing  the  burden 
of  proof  on  the  opposing  party,  as  in  a  case  of  an  award,  and  hold- 
ing him  bound,  unless  he  impeaches  the  test  referred  to  by  clear 
proof  of  fraud  or  mistake.^ 

'  §  185.  The  admissions  of  the  ivife  will  bind  the  husband,  only 
where  she  has  authority  to  make  them.'*  This  authority  does  not 
result,  by  mere  operation  of  law,  from  the  relation  of  husljand  and 
wife ;  but  is  a  question  of  fact,  to  be  found  by  the  jury,  as  in  other 
cases  of  agency ;  for  though  this  relation  is  peculiar  in  its  circum- 
stances, from  its  close  intimacy  and  its  very  nature,  yet  it  is  not 
pecidiar  in  its  principles.  As  the  wife  is  seldom  expressly  con- 
stituted the  agent  of  the  husband,  the  cases  on  this  subject  are 

1  Stevens    v.    Thacker,   Peake's    Cas.  Anderson  i\  Sanderson,  2  Stark.  R.  204; 

187;  Lloyd  v.  WilUin,  1  Esp.  178;  Deles-  Carey  v.  Adkins,  4  Canii)b.  92.     In  Wal- 

line  ('.  Greenland,  1  Bay,  458,  ace.,  where  ton  v.  Green,  1  C.  &  1'.  621,  which  was  an 

the  oath  of  a  third  person  was  referred  to.  action   for   necessaries   furnished    to    the 

See  Keg.  t".  Moreau,  36  Leg.  Obs.  (39;  11  wife,    the   defence    being    that    she   was 

Ad.  &  El.  1028,  as  to  the  admissibility  of  turned  out  of  doors  for  adultery,  the  hus- 

an  award  as  an  admission  of  the  party,  band  was  permitted  to  prove  her  confes- 

//;/ra,  §  537,  n.  (1).  sions   of    the   fact,  just  previous   to    his 

-  Garnett  v.  Ball,  3  Stark.  R.  160.  turning  her  away ;  but  this  was  eontem- 

^  Whitehead  v.  Tattersall,  1  Ad.  &  El.  porary  with  the  transaction  of  which  it 

491.  formed  a  part. 

*  Emerson    v.   Blonden,   1   Esp.   142; 


214  LAW    OF    EVIDENCE.  [PART    II. 

almost  uuivcrsully  those  of  implied  aulliority,  turning  upon  the 
degree  in  whieh  the  husband  permitted  the  wife  to  participate, 
either  in  the  transaction  of  his  affairs  in  general,  or  in  the  par- 
ticular matter  in  question.  AVhere  he  sues  for  her  wages,  the 
fact  that  she  earned  them  does  not  authorize  her  to  bind  him  by 
her  admissions  of  payment ;  ^  nor  can  her  declarations  affect  him, 
where  he  sues  with  her  in  her  right ;  for  in  these,  and  similar 
cases,  the  right  is  his  own,  though  acquired  through  her  instru- 
mentality."'^ But  in  regard  to  the  inference  of  her  agency  from 
circumstances,  the  question  has  been  left  to  the  jury  with  great 
latitude,  both  as  to  the  fact  of  agency,  and  the  time  of  the  admis- 
sions. Thus,  it  has  been  held  competent  for  them  to  infer  authority 
in  her  to  accept  a  notice  and  direction,  in  regard  to  a  particular 
transaction  in  her  husband's  trade,  from  the  circumstance  of  her 
being  seen  twice  in  his  counting-room,  appearing  to  conduct  his 
business  i-elating  to  that  transaction,  and  once  giving  orders  to 
the  foreman.^  And  in  an  action  against  the  husband,  for  goods 
furnished  to  the  wife,  while  in  the  country,  where  she  was  occa- 
sionally visited  by  him,  her  letter  to  the  plaintiff,  admitting  the 
debt,  and  apologizing  for  the  non-payment,  though  written  several 
years  after  the  transaction,  was  held  by  Lord  EUcnborough  suffi- 
cient to  take  the  case  out  of  the  statute  of  limitations.*^) 

§  186.  The  admissions  of  attorneys  of  r-ecord  bind  their  clients, 
in  all  matters  relating  to  the  progress  and  trial  of  the  cause.  But, 
to  this  end,  they  must  be  distinct  and  formal,  or  such  as  are 
termed  solemn  admissions, "made  for  the  express  purpose  of  allevi- 
ating the  stringency  of  some  rule  of  practice,  or  of  dispensing  with 
the  formal  proof  of  some  fact  at  the  trial.  In  such  cases,  they  are 
in  general  conclusive ;  and  may  be  given  in  evidence,  even  upon 
a  new  trial.^     But  other  admissions,  which  are  mere  matters  of 


1  Hall  V.  Hill,  2  Str.   1094.      An   au-  peneil  before  the  marriage,  receivable  after 

thority  to  tlie  wife  to  conduct  the  ordinary  liis  death,  to  attect  tlie  rights  of  the  survi- 

business   of   the   shop  in   her   husband's  ving  wife.     Smith  v.  Scudder,  11  Serg.  & 

absence  does   not  authorize  her  to  bind  K.  325. 

him   by  an   admission,  in  regard   to  the  ■'  riimmer  v.  Sells,  3  Nov.  &  M.  422. 

tenancy  or  tlie  rent  of  the  slio]).    Meredith  And  see  Kiley  v.  Suydara,  4  Barb.  s.  C. 

V.  Footner,  11   M.   &  W.  202 ;   [Jordan  v.  K.  222. 
Hubbard,  20  Ala.  433.]  •*  (jregory  v.  Parker,  1   Campb.  394; 

■^  Albany.  Pritchet.OT.R.  680;  Kelley  Palethorp  v.  Furnish,  2  Esp.  511,  note, 

r.  Small,  2  Esp.  710;  Denn  v.  White,  7  See  also  Cliflbrd  v.  Burton,  1  liing.  199; 

T.  H.  112,  as  to  her  admission  of  a  trcs-  8  More,   10,  s.  c. ;   Petty  v.  Anderson,  3 

jmss.     llodgkinson  i\  Fletcher,  4  Campb.  Bing.  170;  Cotes  v.  Davis,  1  Campb.  485. 
70.      Neitlier  are   his   ailniissions,   as   to  '"  Doe  v.  Bird,  7  C.  &  P.  0 ;  Langley  v. 

facts  respecting  her  ijroperty,  which  hap-  Ld.  Oxford,  1  M.  &  W.  508. 


CHAP.  XI.]  OF   ADMISSIONS.  215 

conversation  with  an  attorney,  though  they  relate  to  the  facts  in 
controversy,  cannot  be  received  in  evidence  against  his  client. 
The  reason  of  the  distinction  is  found  in  the  nature  and  extent  of 
the  authority  given ;  the  attorney  being  constituted  for  the  man- 
agement of  the  cause  in  court,  an.d  for  nothing  more.^  If  the 
admission  is  made  before  suit,  it  is  equally  binding,  provided  it 
appear  that  the  attorney  was  already  retained  to  appear  in  the 
cause.^  But  in  the  absence  of  any  evidence  of  retainer  at  that 
time  in  the  cause,  there  must  be  some  other  proof  of  authority  to 
make  the  admission.^  Where  the  attorney  is  already  constituted 
in  the  cause,  admissions  made  by  his  managing  clerk  or  his  agent 
are  received  as  his  own.^ 

§  187.  We  are  next  to  consider  the  admissions  of  a  principal,  ' 
as  evidence  in  an  action  against  the  surety,  upon  his  collateral 
undertaking.  In  the  cases  on  this  subject  the  main  inquiry  has 
been,  whether  the  declarations  of  the  principal  were  made  during 
the  transaction  of  the  business  for  which  the  surety  was  bound, 
so  as  to  become  part  of  the  res  gestce.  If  so,  they  have  been  held 
admissible ;  otherwise  not.  The  surety  is  considered  as  bound j 
only  for  the  actual  conduct  of  the  party,  and^  not  for  whatever  lie 
miglifsaylieliaS  (f one  ;"*and  therefore  is  entitled  to  proof  of  his 
«30iiductl)y  original  evidence,  where  it  can  be  had ;  excluding  all 
declarations  of  the  principal,  made  subsequent  to  the  act,  to  which 
they  relate,  and  out  of  the  course  of  his  official  duty.  Thus, 
where  one  guaranteed  the  payment  for  such  goods  as  the  plaintiffs 
should  send  to  another,  in  the  way  of  their  trade;  it  was  held, 
that  the  admissions  of  the  principal  debtor,  that  he  had  received 
goods,  made  after  the  time  of  their  supposed  delivery,  were  not 
receivable  in  evidence  against  the  surety.^  So,  if  one  becomes 
surety  in  a  bond,  conditioned  for  the  faithful  conduct  of  another 
as  clerk,  or  collector,  it  is  held,  that,  in  an  action  on  the  bond 
against  the  surety,  confessions   of  embezzlement,  made   by  the 

1  Young  V.  Wright,  1  Campb.  139,  141 ;  Griffitlis  v.  "Williams,  1  T.  R.  710  ;  Trus- 
Perkins  i--.  Hawkshaw,  2  Stark.  R.  289  ;  love  v.  Burton,  9  Moore,  64.  As  to  the 
Elton  V.  Larkins,  1  M.  &  Rob.  196  ;  Doe  extent  of  certain  admissions,  see  Holt  v. 
V.  Bird,  7  C.  &  P.  6 ;  Doe  v.  Richards,  2  Squire,  Ry.  .&  M.  282 ;  Marshall  v.  Cliff, 
C.  &  K.  216;  Watson  v.  King,  3  M.  G.  &  4  Campb.  l;>5.  The  admission  of  the  due 
Sc.  608;  execution  of  a  deed  does  not  preclude  the 

2  Marshall  i'.  ClifT,  4  Campb.  133.  party  from  taking  advantage  of  a  variance. 
8  Wagstaff  y.  Wilson,  4  B.  &  Ad.  339.       Goldie  v.  Shuttleworth,  1  Campb.  70. 

*  Taylor  v.  Williams,  2  B.  &  Ad.  845,  ^  Evans  v.  Beattie,  5  Esp.  26 ;  Bacon 

856;  Standage  v.  Creighton,  5  C.  &  P.  v.  Chesney,  1  Stark.  R.  192;  Longen- 
406 ;   Taylor  v.  Eorster,  2  C  &  P.  195 ;     ecker  v.  Hyde,  6  Biun.  1. 


210  LAW   OF   EVIDENCE.  [PART   II. 

principal  after  his  dismissal,  are  not   admissible   in   evidence-/ 
thongh,  with  regard  to  entries  made  in  the  course  of  his  duty,  it 
is  otherwisc.2     A  judgment,  also,  rendered  against  the  princii)al, 
may  be  admitted  as  evidence  of  that  foct,  in  an  action  against  the 
surety.-'^     On  the  other  hand,  upon  the  same  general  ground  it 
has  l)een  hehl,  tliat,  where  the  surety  confides  to  the   prineii)al 
the  power  of  making  a  contract,  he  confides  to  him  the  power  of 
furnishing  evidence  of  the  contract;  and  that,  if  the  contract  is 
made  by  parol,  subsequent  declarations  of  the  principal  are  admis- 
si])le  in  evidence,  though  not  conclusive.     Thus,  where  a  husband 
and  wife  agreed,  by  articles,  to  live  separate,  and  C,  as  trustee 
and  surety  for  the  wife,  covenanted  to  pay  the  husljand  a  sum 
of  money,  upon  his  delivering  to  the  wife  a  carriage  and  horses 
for  her  separate  use ;  it  was  held,  in  an  action  by  the  hu^^band  for 
the  money,  that  the  wife's  admissions  of  the  recci[)t  by  her  of  the 
carriage  and  horses  were  admissible.^     So,  where  A  guaranteed 
the  performance  of  any  contract  that  B  might  make  with  C,  the 
admissions  and  declarations  of  B  were  held  admissible  against  A, 
to  prove  the  contract.^ 

§  188.  But  where  the  surety,  being  sued  for  the  default  of  the 
principal,  gives  him  notice  of  the  pendency  of  the  suit,  and  requests 
him  to  defend  it ;  if  judgment  goes  against  the  surety,  the  record 
is  conclusive  evidence  for  him,  in  a  subsequent  action  against  the 
principal  for  indemnity  ;  for  the  principal  has  thus  virtuaUy  become 
party  to  it.  It  would  seem,  therefore,  tiiat  in  such  ease  the  dec- 
larations of  the  principal,  as  we  have  heretofore  seen,  become 
admissible,  even  though  they  operate  against  the  surety.*^ 

§  189.  The  admissions  of  one  person  are  also  evidence  against 
another,  in  respect  of  privity  between  them.  ^''^' The  term  2>^'^vity 
denotes  mutual  or  successive  relationship  to  the  same  rights  of 
property ;  and  privies  are  distributed  into  several  classes,  accord- 
ing to  the  manner  of  this  relationship.  ^'  Thus,  there  are  privies  in 
estate,  as,  donor  and  donee,  lessor  and  lessee,  and  joint-tenants ; 

1  Smith  V.  Whittingham,  6  C.  &  P.  78.  2  Whitnash  v.  Goorjjc,  8  B.  &  C.  556 ; 

See  also  Goss  v.   Watlington,  3  B.  &  B.  Midiili-tou   v.    Melton,   10    B.   &  C.  317 ; 

132;  Cutler  v.  Newiiii,  Manning's  Digest,  Me(ialiey  v.  Alston,  2  M.  &  W.  213,  214. 
N.   P.    137,   per    llohoyd,    J.,    in    ISl'.);  8  j^rmu-iuond  y.  Prestman,  13  Wheat. 

Dawes  v.  Shedd,  15  Mass.  G,  9 ;  Foxcroft  515. 

V.  Kevins,  4  (ireenl.  72;  Hayes  v.  Seaver,  *  Tenner  v.  Lewis,  10  Johns.  38. 

7    Greenl.   237;    Respubhca  v.   Davis,  3  '">  Meade  y.  ^IcDowell,  5  Binn.  195. 

Ycales,  128;  llotchkiss  r.  Lyon,  2  Blackf.  «  See  supra,  §  180,  note  (8),  and  cases 

222;    Shelby  v.   The  Govel-nnr,  &c..  Id.  tliere   cited.      [See   Powers   v.  Nash,  37 

•  289  ;  BeaU  v.  Beck,  3  Har.  &  Mcllen.  242.  Maine,  322.] 


CHAP.  XI.]  OF   ADMISSIONS.  217 

privies  ill  blood,  as,  heir  and  ancestor,  and  coparceners ;  privies 
in  re})resentatioii,  as,  executors  and  testator,  administrators  and 
intestate ;  privies  in  law,  where  the  law,  without  privity  of  blood 
or  estate,  casts  the  land  upon  another,  as  by  escheat.  All  these 
are  more  generally  classed  into  juivies  in  estate,  privies  in  blood, 
and  privies  in  law.^  The  ground  upon  which  admissions  bind 
those  in  privity  Avith  the  party  making  them  is,  that  tliey  are 
identified  in  interest ;  and,  of  course,  the  rule  extends  no  farther 
than  this  identity.  The  cases  of  coparceners  and  joint-tenants 
are  assimilated  to  those  of  joint-promisors,  partners,  and  others 
having  a  joint  interest,  which  have  already  been  considered.^  In 
other  cases,  where  the  party,  by  his  admissions,  has  qualified  his 
own  right,  and  another  claims  to  succeed  him  as  heir,  executor, 
or  the  like,  he  succeeds  only  to  the  right,  as  thus  qualified,  at  the 
time  when  his  title  commenced  ;  and  the  admissions  are  receivable 
ill  evidence  against  the  representative,  in  the  same  manner  as 
they  would  have  been  against  the  party  represented.  Thus,  the 
declarations  of  the  ancestor,  that  he  held  the  land  as  the  tenant 
of  a  third  person,  are  admissible  to  show  the  seisin  of  that  person, 
in  an  action  brought  by  him  against  the  heir  for  the  land.^  Thus, 
also,  where  the  defendant  in  a  real  action  relied  on  a  long  posses- 
sion, he  has  been  permitted,  in  proof  of  the  adverse  character  of 
the  possession,  to  give  in  e\:idence  the  declarations  of  one  under 
whom  the  plaintiff  claimed,  that  he  had  sold  the  land  to  the  person 
under  whom  the  defendant  claimed.'^  And  the  declarations  of  an 
intestate  are  admissible  against  his  administrator,  or  any  other 
claiming  in   his   riglit.^     The    declarations,  also,  of  the  former 

1  Co.  Lit.  *271rt;  Carver  v.  Jackson,  4  erley's  case,  4  Co.  123,  124;  supra,  §§  19, 

Peters,  1,  83;    Wood's  Inst.  L.  L.  Eng.  20,  23,  24.      [*  Ueclarations  by  a  tbrmer 

236;  Tomlin's  Law  Diet,  in  Verb.     Priu-  owner  of  property  under  whom  the  party 

ies.     But  the  achnissions  of  executors  and  claims   title  are,  in  general,  evidence,  ii' 

administrators  are  not  receivable  against  made   during   the  existence  of  his  title, 

their    co-executors    or  co-administrators.  Hay  ward  Rubber  Co.  i".  Duncklee,  30  Vt. 

Elwood  V.   Deifendorf,  5  Barb.  s.  c.  R  R.  2'J.     See  also  Wheeler  v.  McCorristen, 

3'J8.      Otlier  divisions  have    been  recog-  24  111.  210;    Norton  v.  Kearney,  10  Wis. 

nized  ;  namely,  ])rivity  in  tenure  between  443.] 
landlord  anil   tenant;    {)rivity  in  contract  -  Supra,  §§  174,  180. 

alone,  or  the  relation  between  lessor  and  ^  Doe   v.  Tettett,  5  B.  &  Ad.  223 ;  2 

lessee,  or  heir  and  tenant  in  dower,  or  by  Poth.  on  Obi.  by  Evans,  p    2-34;    supra, 

the  courtesy,  by  the  covenants  of  the  latter,  §§  108,  109,  and  cases  there  cited, 
after  he  has  assigned  his  term  to  a  stran-  *  Brattle  Street  Church  v.  Hubbard,  2 

ger;  privity  in  estate  alone,  between  tlie  Met.  303.     And  see  Podgett  r.  Lawrence, 

lessee  and  the  grantee  of  the  reversion;  10  Paige,  170;  Dorsey  r.  Dorsey,  3  II.  & 

and  privity  in  botli  estate  and  contract,  J.  410 ;  Clary  v.  Grimes,  12  (J.  &  J.  31. 
as   between  lessor  and  lessee,  &c. ;    but  °  Smith  v.   Smith,  3  Bing.  n.  c.  29; 

these  are  foreign  from  our  present  pur-  Ivat  v.  i'incli,  1  Taunt.  141. 
pose.     See  Walker's  case,  3  Co.  23 ;  Bev- 

VOL.  I.  19 


218  LAW    OF    EVIDENCE.  .         [PART   II. 

occupant  of  a  messuage,  in  respect  of  which  the  present  occupant 
claimed  a  riglit  of  common,  because  of  vicinage,  are  admissible 
evidence  in  disparagement  of  the  right,  they  being  made  during 
his  occupancy  ;  and,  on  the  same  princijjlc,  other  contemporaneous 
declarations  of  occupiers  have  been  admitted,  as  evidence  of  the 
nature  and  extent  of  their  title,  against  those  claiming  in  privity 
of  estate.^  Any  admission  by  a  landlord  in  a  prior  lease,  which 
is  relative  to  the  matter  in  issue,  and  concerns  the  estate,  has  also 
been  held  admissible  in  evidence  against  a  lessee  who  claims  by 
a  subsequent  title.^ 

§  190.  The  same  principle  holds  in  regard  to  admissions  made  hy 
the  assignor  of  a  personal  contract  or  chattel,  previous  to  the  as- 
signment, while  he  remained  the  sole  proprietor,  and  where  the 
assignee  must  recover  through  the  title  of  the  assignor,  and  suc- 
ceeds only  to  tluit  title  as  it  stood  at  the  time  of  its  transfer.  In 
such  case,  he  is  bound  by  the  previous  admissions  of  the  assignor, 
in  disparagement  of  his  own  apparent  title.  But  this  is  true  only 
where  there  is  an  identity  of  interest  between  the  assignor  and 
assignee ;  and  such  identity  is  deemed  to  exist  not  only  where 
the  latter  is  expressly  the  mere  agent  and  representative  of  the 
former,  but  also  where  the  assignee  has  acquired  a  title  with 
actual  notice  of  the  true  state  of  that  of  the  assignor,  as  qualified 
by  the  admissions  in  question,  or  where  he  has  purchased  a  de- 

1  Walker  v.  Broaflstock,  1  Esp.  458;  v.   Ciirrinsxton,  1  .C.   &  P.   329,   330, -n.; 

Doe  V.  Austin,  9   Bing.   41 ;    Davies    v.  Maddisoii  v.  Nuttal,  6  Bing.  226.     So,  the 

Pierce,  2  T.  R.  53  ;   Doe  v.  Rickarby,  5  answer  of  a  former  rector.     De  Wlielp- 

Esp.    4;    Doe   v.  Jones,    1    Campb.    3G7.  dale  r.  Milburn,  5  Price,  485.     An  answer 

Ancient    maps,    books    of   survey,    &c.,  in  chancery  is  also  admissible  in  evidence 

though  mere  private  documents,  are  fre-  against  any  person  actually  claiming  un- 

quently  admissible  on  this  ground,  where  der  the  party  who  put  it  in  ;  and  it  lias 

there  is  a  privity  in  esbite  between  the  been   held  prima  facie   evidence   against 

former  proi)rietor,  untler  whose  direction  persons  generally  reputed  to  claim  under 

they  were   made,  and  the  present  claim-  \\n\\,  at  least  so  far  as  to  call  upon  thoni  to 

ant,  against  whom  they  are  oHL'red.    Bull,  show  another  title  from  a  stranger.     Earl 

N.  P.  283;    Brigman  v.  Jennings,  1  Ld.  of  Sussex  v.  Tenii)le,  1  Ld.  Raym.  310; 

Raym.  734 ;  [.s«y)n/,  §  145,  note.]     So,  as  Countess   of   Dartmouth   v.   Rolierts,    l(j 

to  receipts  for  rent,  by  a  former  grantor,  East,  334,  339,  340.     So,  of  other  declara- 

under  whom  both  jiarties  claimed.     Doe  tions  of  the  former  i)arty  in  possession, 

V.  Seaton,  2  Ad.  &  VA.  171.  which  would  have  been  good  against  him- 

^  Creiise  v.  Barrett,  1  Crompt.  Mees.  self,  and  were  made  while  he  was  in  pos- 
&  R.  919,  932.  See  also  Doe  v.  Cole,  6  session.  Jackson  v.  Bard,  4  .lohns.  230, 
C.  &  P,  359,  that  a  letter  written  by  a  for-  234;  Norton  v.  Pettibone,  7  Conn.  319; 
mer  vicar,  resj)ecting  the  property  of  the  Weiilman  v.  Kohr,  4  Serg.  &  R.  174;  su- 
vicarage,  is  evidence  against  his  successor,  pra,  §§  23,  24.  [*  The  declarations  of  the 
in  an  ejectment  for  the  same  i)roperty,  in  intestate  are  evidence  against  his  admin- 
right  of  his  vicarage.  The  receipts,  also,  istrator,  as  a  privy  by  representation, 
of  a  vicar's  lessee,  it  seems,  are  admissible  upon  the  questiori  of  having  made  a  dona- 
against  the  vicar,  in  ()roof  of  a  imxiits,  by  tio  mortis  causa.  Smith  v.  Maine,  25  Barb, 
reason  of  the  privity  between  them.  Jones  33.J 


CHAP.  XI.] 


OP   ADMISSIONS. 


219 


maud  already  stale,  or  otherwise  infected  with  circumstances  of 
suspicion. 1  Thus,  the  declarations  of  a  former  holder  of  a  prom- 
issory note,  negotiated  before  it  was  overdue,  showing  that  it 
was  given  without  consideration,  though  made  while  he  held  the 
note,  are  not  admissible  against  the  indorsee ;  for,  as  was  subse- 
quently observed  by  Farke,  J.,  "  the  right  of  a  person,  liolding  bj 
a^ood  title,  is  not  to  be  cut  down  by  the  a'cknowludginent  of  a 
former  holder,  that  he  had  no  title."  ^  But  in  an  action  by  the 
indorsee  of  a  bill  or  note  dishonored  before  it  was  negotiated, 
the  declarations  of  the  indorser,  made  while  the  interest  was  in 
him,  are  admissible  in  evidence  for  the  defendant.^ 


1  Harrison  v.  Vallance,  1  Bins?.  38 ; 
Bayley  on  Bills,  by  Phillips  anJ  iSewall, 
pp.  502,  503,  and  notes  (2d  Am.  edit.); 
Gibblehouse  v.  Strong,  3  Rawle,  437; 
Ilatcli  V.  Dennis,  1  Fairf.  244 ;  Snelgrove 
V.  Martin,  2  McCord,  241,  243.  [The 
declarations  and  admissions  of  an  assignor 
of  personal  property,  as  a  patent  right, 
made  after  he  has  i>arted  with  his  interest, 
in  it,  are  inadmissible  either  to  show  a 
■want  of  title  in  him,  or  to  atfect  the  qual- 
ity of  the  article,  or  to  impair  the  right  of 
the  purchaser  in  any  respect.  By  Nelson, 
J.,  Many  v.  Jagger,  1  Blatchf.  C.  C.  R. 
372,  376.] 

2  Barough  r.  White,  4  B.  &  C.  325, 
explained  in  Woolway  i\  Rowe,  1  Ad.  & 
El.  114,  116;  Shaw  v.  Broom,  4  D.  &  R. 
730;  Smith  v.  De  Wruitz,  Ry.  &  M.  212; 
Beauchamp  i\  Parry,  1  B.  &  Ad.  8'J ; 
Hackett  v.  Martin,  8  Greenl.  77 ;  Parker 
V.  Grout,  11  Mass.  157,  n. ;  Jones  v.  Win- 
ter, 13  Mass.  304  ;  Dunn  i*.  Snell,  15  Mass. 
481;  Paige  v.  Cagwin,  7  HiU,  N.  Y.  R. 
861.  In  Connecticut,  it  seems  to  have  been 
held  otherwise.  Johnson  v.  Blackman, 
11  Conn.  342 ;  Woodruff  v.  Westcott,  12 
Conn.  134.  So,  in  Vermont,  Sargeant  v. 
Sargeant,  3  Washb.  371.  [The  statements 
of  an  insolvent  debtor,  whether  made  be- 
fore or  after  a  sale,  alleged  to  be  fraudu- 
lent, as  to  the  value  of  the  property  sold, 
and  of  his  other  property,  are  inadmissible 
against  his  assignee  in  insolvency,  to  show 
that  the  sale  was  in  good  faith  in  a  suit  by 
the  assignee  against  tlie  purchaser  of  said 
property  to  i-ecover  its  value.  Heywood 
V.  Reed,  4  Gray,  574.  See  also  Jones  v. 
Church,  &c.,  2f  Barb.  161.]  [*  As  a  gene- 
ral rule  the  declarations  of  the  assignor  in 
the  case  of  an  alleged  fraudulent  sale,  are 
not  admissible  evidence  against  the  as- 
signee, unless  made  before  the  assign- 
ment, and  with  a  view  to  show  its  pur- 
pose, so  as  to  form  part  of  the  re.i  (jeMue. 
But  if  made  wliile  the  assignor  remained 


in  possession,  although  after  the  execution 
of  the  assignment,  tliey  are  held  competent 
to  characterize  the  transaction.  Adams 
V.  Davidson,  10  N.  Y.  Ct.  App.  309.  And 
where  a  combination  between  the  assignor 
and  assignee  is  previously  established,  the 
declarations  of  the  assignor  will  be  evi- 
dence against  the  assignee  to  the  fullest 
extent,  although  made  after  the  assign- 
ment. Cuyler  v.  McCartney,  33  Barb. 
165.] 

3  Bayley  on  Bills,  502,  503,  and  notes 
(2d.  Am.  ed.  by  Phillips  &  Sewall),  Pocock 
V.  Billings,  Ry.  &  M.  127.  See  also  Story 
on  Bills,  §  220;  Chitty  on  Bills,  650  (8th 
edit.);  Hatch  v.  Dennis,  1  Pairf.  249; 
Shirley  v.  Todd,  9  Greenl.  83.  [In  a  suit 
against  the  maker  of  a  promissory  note 
by  one  who  took  it  when  overdue,  the 
declarations  of  a  prior  holder,  made  while 
he  held  the  note,  after  it  was  due,  are 
admissible  in  evidence  to  show  payment 
to  such  prior  holder,  or  any  right  of  set-off 
which  the  maker  had  against  him.  But 
such  declarations,  made  by  such  holder 
before  he  took  the  note  are  inadmissible. 
So  such  declarations,  made  by  such  holder 
after  assigning  the  note  to  one  from  whom 
the  plaintiff  since  took  it,  are  inadmissible 
unless  such  assignment  was  conditioned 
to  be  void  upon  the  payment  to  the  as- 
signor of  a  less  sum  than  the  amount  due 
on  the  note,  in  which  case  such  declara- 
tions are  admissible  in  evidence  for  the 
defendant  to  the  extent  of  the  interest 
remaining  in  such  prior  holder.  Bond  i-. 
Pitzpatrick,  4  Gray,  89,  92;  Sylvester 
V.  Crapo,  15  Pick.  92;  Fisher  v.  True,  38 
Maine,  534 ;  McLanathan  v.  Patten,  39 
lb.  142 ;  Scanimon  v.  Scannnon,  33  N.  H. 
52,  58  ;  Criddle  v.  Criddle,  21  Mis.  522.] 
[*  See  Jermain  v.  Denniston,  6  N.  Y.  Ct. 
App.  276;  Booth  v.  Swezey,  8  Id.  276; 
Tousley  v.  Barry,  16  Id.  497.  The  prac- 
tice in  the  different  states,  in  regard  to 
admitting  the  declarations  of  the  owner  of 


220 


LAW   OF   EVIDENCE. 


[part  II. 


§  101.  These  admissions  by  third  persons,  as  they  derive  their 
value  and  legal  force  from  the  relation  of  the  party  making  them 
to  the  property  in  question,  and  are  taken  as  parts  of  the  res  r/c.^ta', 
may  be  j^roved  hy  any  competent  witness  wlio  heard  them,  without 
calling  the  party  by  whom  they  were  made.  The  question  is, 
whether  he  made  the  admission,  and  not  merely,  wliefircr  the  tact 
is  as  he  admitted  it  to  be.  Its  truth,  where  the  admission  is  not 
conclusive  (and  it  seldom  is  so),  may  be  controverted  by  other 
testimony  ;  even  by  calliug  the  party  himself,  when  competent ; 
but  it  is  not  necessary  to  produce  him,  his  declarations,  when 
admissible  at  all,  being  admissible  as  original  evidence,  and  not 
as  hearsay.^ 

§  192.  We  are  next  to  consider  the  thne  and  circumstances  of 
the  admission.  And  here  it  is  to  be  observed,  that  confidential 
overtures  of  pacification,  and  any  other  offers  or  propositions 
between  litigating  parties,  expressly  stated  to  be  made  without 
prejudice,  are  excluded  on  grounds  of  public  policy.^  For  witliout 
this  protective  rule,  it  would  often  be  difficult  to  take  any  step 
towards  an  amicable  compromise  or  adjustment.  A  distinction 
is  taken  between  the  admission  of  particular  facts,  and  an  offer  of 
a  sum  of  money  to  buy  peace.     For,  as  Lord  Mansfield  observed, 


a  chose  in  action,  wliile  hoMiiig  the  same, 
it  not  beins  nejioliable,  or  if  so,  being  at 
tlie  time  ovenhie,  to  the  eftet-t  tiiat  tlie 
same  had  been  paid,  or  is  otherwise  in- 
vaUd,  and  this  as  against  a  subsequent 
bona  fide  owner,  is  not  uniform.  See  Mil- 
ler V.  Bingham,  2'J  Vt.  K.  82,  where  such 
declarations  were  held  admissible.  The 
cases  cited  above  from  New  York  show 
tiiat  such  declarations  are  not  there  ad- 
missible. The  English  ride  seems  in 
liivor  of  receiving  such  declarations,  as  to 
the  title  of  all  personalty.  Harrison  v. 
Vallance,  1  Bing.  45 ;  Siiaw  v.  Broom,  4 
Dow.  &  Ky.  7;>U;  Pocock  ;.'.  Billing,  2 
Bing.  2()'.}.  But  see  Carpenter  v.  IloUis- 
ter,  l:'.  Vt.  R.  552,  where  the  question,  as 
to  real  estate,  is  fully  discussed.] 

1  Supra,  §§  101,  113,  114,  and  cases 
there  cited;  Clark  h\  llougham,  2  B.  & 
C.  149:  Mountstephen  i'.  Brooke,  3  B. 
&  Aid.  141 ;  Woolway  v.  Rowe,  1  Ad.  & 
El.  114;  Payson  v.  Good,  3  Kerr,  272. 

2  Cory  V.  Bretton,  4  C.  &  P.  462; 
Ilealey  i-.  Thatcher,  8  C.  &  P.  388.  Com- 
munications between  the  clerk  of  the 
plaintitTs  attorney,  and  the  attorney  of 
the  defendant,  witli  a  view  to  a  comprom- 
ise, have  been  licld  i)rivilegod,  under  this 
rule.    Jardjne  v.  yiieridan,  2  C.  &  K.  24. 


fin  .Tones  v.  Foxall,  13  Eng.  Law  &  Eq. 

141),  145,  Sir  John  Ilomilly,  Master  of  the 
Rolls,  said :  "  I  shall,  as  far  .as  I  am  able, 
in  all  cases,  endeavor  to  suppress  a  jirac- 
li(;e  which,  when  I  was  first  acquainted 
with  the  profession,  was  rarely,  if  ever, 
ventured  upon  ;  but  wliich,  according  to 
my  experience,  has  been  common  of  late, 
namely,  that  of  attempting  to  convert  of- 
fers of  compromise  into  admissions  .and 
acts  prejudicial  to  the  parties  m.akuig 
them.  If  this  were  permitted,  the  efTect 
would  l)e,  that  no  attempt  to  compromise 
a  suit  would  ever  be  made.  If  no  reser- 
vation of  the  })arties  who  make  an  offer 
of  comi)romise  could  prevent  that  ofler  and 
the  letters  from  being  afterwards  given  in 
evidence,  and  made  use  of  against  them, 
it  is  obvious  that  no  such  letters  would  be 
written  or  offers  made.  In  my  opinion, 
such  letters  and  offers  are  admissible  for 
one  purpose  only,  i.e.,  to  show  that  an  at- 
tempt has  been  made  to  compromise  the 
suit,  which  may  be  sometimes  necessary; 
as,  for  instance,  in  order  to  account  for 
lapse  of  time,  but  never  to  fix  the  jiersons 
making  them  with  ailmissions  contiiined 
in  such  letters,  and  I  shall  do  all  I  can  to 
discourage  this,  wliich  I  consider  to  be  a 
very  injurious  practice."] 


CHAP.  XI.] 


OF   ADMISSIONS. 


221 


it  must  be  permitted  to  m'cn  to  buy  their  peace  without  prejudice 
ta  them,  if  the  offer  sliould  not  succeed ;  and  such  offers  are 
made  to  stop  litigation,  without  regard  to  the  question  whether 
any  thing  is  due  or  not.  If,  therefore,  the  defendant,  being  sued 
for  <£100,  should  offer  the  plaintiff  <£20,  this  is  not  admissible  in 
evidence,  for  it  is  irrelevant  to  the  issue ;  it  neither  admits  nor 
ascertains  any  debt ;  and  is  no  more  than  saying,  he  would  give 
£20  to  be  rid  of  the  action.^  But  in  order  to  exclude  distinct 
admissions  of  facts,  it  must  appear,  either  that  they  were  expressly 
made  without  prejudice,  or  at  least,  that  they  were  made  under 
the  faith  of  a  pending  treaty,  and  into  which  the  party  might  have 
been  led  by  the  confidence  of  a  compromise  taking  place.  But 
if  the  admission  be  of  a  collateral  or  indifferent  fact,  such  as  the 
handwriting  of  the  party,  capable  of  easy  proof  by  other  means, 
and  not  connected  with  the  merits  of  the  cause,  it  is  receivable, 
though  made  under  a  pending  treaty .^  It  is  the  condition,  tacit 
or  express,  that  no  advantage  shall  be  taken  of  the  admission,  it 
being  made  with  a  view  to,  and  in  furtherance  of,  an  amicable 
adjustment,  that  operates  to  exclude  it.  But  if  it  is  an  inde- 
pendent admission  of  a  fact,  merely  because  it  is  a  fact,  it  will  be 
received ;  and  even  an  offer  of  a  sum,  by  way  of  compromise  of 
a  claim  tacitly  admitted,  is  receivable,  unless  accompanied  with  a 
caution  that  the  offer  is  confidential.^ 


C 


1  Bull.  N.  P.  236 ;  Gregory  v.  Howard, 
3  Esp.  113,  Ld.  Kenyon;  Marsh  v.  Gold, 
2  rick.  290 ;  Gerrisli  v.  Sweetser,  4  Pick. 
374,  377;  Waym.in  v.  Hilliard,  7  Bing. 
101 ;  Cuniming  v.  French,  2  Campb.  106, 
n. ;  Glasstbrd  on  Evid.  p.  336.  See  Moly- 
neaux  v.  Collier,  13  Georgia  R.  406.  But 
an  offer  of  compromise  is  admissible, 
where  it  is  only  one  step  in  the  proof  that 
a  compromise  has  actually  been  made. 
CoUier  r.  Nokes,  2  C.  &  K.  1012. 

^  Waldridge  v.  Kenison,  1  Ks]),  It:;, 
per  Lord  Kenyon.  The  American  cdiiii j 
have  gone  farther,  and  held,  that  evidence 
of  tlie  admission  of  any  independent  fact 
is  receivable,  though  made  during  a  treaty 
of  compromise.  See  Mount  v.  Bogert, 
Anthon's  Rep.  190,  per  Thompson,  C.  J. ; 
Murray  v.  Coster,  4  Cowen,  635;  Fuller 
V.  Hampton,  5  Conn.  416,  426 ;  Sanborn 
V.  Neilson,  4  New  Hamp.  R.  501,  508,  509 ; 
Delogny  v.  Rentoul,  1  Martin,  175  ;  Mar- 
vin V.  Richmond,  3  Den.  58;  Cole  v.  Cole, 
34  Maine,  542;  | Harrington  v.  Lincoln,  4 
Gray,  563,  567 ;  Corinth  v.  Lincoln,  34 
Maine,   310.]      Lord  Kenyon  afterwards 


relaxed  his  own  rule,  saying  that  in  future 
he  should  receive  evidence  of  all  admis- 
sions, such  as  the  party  wotdd  be  obliged 
to  make  in  answer  to  a  bill  in  equity ;  re- 
jecting none  but  such  as  are  merely  conr 
cessions  for  the  sake  of  making  peace  and 
getting  rid  of  a  suit.  Slack  ?•.  Buchanan, 
Peake's  Cas.  5,  6;  Tait  on  Evid.  p.  293. 
A  letter  written  by  the  adverse  party, 
"without  prejudice,"  is  inadmissible. 
Healey  v.  Thatcher,  8  C.  &  P.  388.  [*  But 
the  writer  of  such  a  letter  is  not  precluded 
from  using  it  in  his  own  favor.  Williams 
V.  Thomas,  2  Drew.  &  Sm.  29.] 

3  Wallace  v.  Small,  1  M.  &  M.  446; 
Watts  V.  Lawson,  Id.  447,  n. ;  Dickinson 
V.  Dickinson,  9  Met.  471 ;  Thompson  v. 
Austen,  2  Dowl.  &  Ry.  358.  In  tliis  case 
Bayle}^  J.,  remarked  that  the  essence  of 
an  offer  to  compromise  was,  tliat  the  party 
making  it  was  wilUng  to  submit  to  a  sacri- 
fice, and  to  make  a  concession.  Hartford 
Bridge  Co.  v.  Granger,  4  Conn.  148 ;  Ger- 
rish  V.  Sweetser,  4  Pick.  374,  377  ;  Murray, 
V.  Coster,  4  Cowen,  617,  635.  Admissions 
made  before  an  arbitrator  are  receivable 


19* 


222  LAW   OF   EVIDENCE.  [PART  II. 

§  103.  In  regard  to  admissions  made  under  circumstances  of 
constraint^  a  distinction  is  taken  between  civil  and  criminal  cases ; 
aiRl  it  has  been  considered,  that  on  the  trial  of  civil  actions, 
admissions  are  receivable  in  evidence,  provided  the  compnlsion 
under  which  they  are  given  is  legal,  and  the  party  was  not  imposed 
upon,  or  under  duress.^  Thus,  in  the  trial  of  Collett  v.  Ld.  Keith, 
for  taking  the  plaintiff's  ship,  the  testimony  of  the  defendant, 
given  as  a  witness  in  an  action  between  other  parties,  in  which 
he  admitted  the  taking  of  the  ship,  was  allowed  to  be  proved 
against  him ;  though  it  appeared  that,  in  giving  his  evidence, 
when  he  was  proceeding  to  state  his  reasons  for  taking  the  ship, 
Lord  Kenyon  had  stopped  him  by  saying,  it  was  unnecessary  for 
him  to  vindicate  his  conduct.^  The  rule  extends  also  to  answers 
voluntarily  given  to  questions  improperly  asked,  and  to  which  the 
witness  might  successfully  have  olyected.  So,  the  volnntary 
answers  of  a  bankruj)t  before  the  commissioners,  are  evidence  in 
a  subsequent  action  against  the  party  himself,  thongh  he  might 
have  demurred  to  the  questions,  or  the  whole  examination  was 
irregular  •,^  unless  it  was  obtained  by  imposition  or  duress.^ 

§  194.  There  is  no  difference,  in  regard  to  the  admissibility  of 
this  sort  of  evidence,  between  direct  admissions  and  those  which 
are  incidental,  or  made  in  some  other  connection,  or  involved  in 
the  admission  of  some  other  fact.  Thus,  where  in  an  action 
against  the  acceptor  of  a  bill,  4iis  attorney  gave  notice  to  tha 
plaintiff  to  produce  at  the  trial  all  papers,  &c.,  which  had  been\. 
received  by  him  relating  to  a  certain  bill  of  exchange  (describing  ^ 
it),  which  "  was  accepted  by  the  said  defendant ;  "  this  was  held\^ 

in   a  siiV)scqucnt   trial   of  tlie  cause,  the  to  the  jury;  but  that,  if  what  was  said 

reference  havinji' proved  inellbctiial.    Slack  bore  in  any  way  on   the   issue,  he  was 

r.  Biicliannan,  Peake's  C.'as.  5.     See  also  bound  to  receive  it  as  evidence  of  tiie  fact 

Grcicory  I'.  Howard,  8  Esp.  113.     Collier  itself.     See  also  Milward  c.  Forbes,  4  Esp. 

V.  Nokes,  2  C.  &  K.  1012.    [Where  a  party  171. 

sued  on  a  note  offered  to  pay  one  half  in  "  Stockfleth  v.  De  Tastet,  4  Campb. 

c;ush,  and  one  half  by  a  new  note  with  an  10;  Smith  v.  Beadnell,  1  C.'anipb.  80.     If 

iixlorser,  and  adniitte<l  at  the  same  time  the  commission  ha,s  been  perverted  to  im- 

tliat  he  owed  the  note,  it  was  held  that  projjcr  purposes,    the   remedy    is    by   an 

the  admission  mifjht  be  used  against  him.  application  to  have  the  examination  taken 

Snow  ".  P>atchel(ler,  8  Cush.  513.]  from   the  files  and  cancelled.     4   Campb. 

1  [The  rule  excluding  confessions  made  11,   jier   \a\.    Ellcnborough  ;    Milward    v. 

under  undue  influence  apiilies  only  to  the  Eorbes,  4  Esp.  171 ;  2  Stark.  Evid.  22. 

confessions  of  a  person  on  trial  in  a  crimi-  *  h'obson  v.  Alexander,  1  Moore  &  P. 

nal   case.     Newhall   v.  Jenkins,  2   Gray,  448 ;  Tucker  v.  Barrow,  7  B.  &  C.  023. 

6G2.]  But  a  legal  necessity  to  answer  the  ques- 

-  Collett  V.  Ld.  Keith,  4  Esp.  212,  per  tions,  under  peril  of  punishment  for  eon- 

Le  Blanc,  J. ;    who  remarked,   that  the  tempt,  it  seems,  is  a  valid  objection  to  the 

manner  in  wliich  the  evidence  had  been  admission  of  the  answers  in  evidence,  in  a 

obtained  might  be  matter  of  observation  criminal  prosecution.     Ilex  v.  Britton,  1 


CHAP.  XI.]  OF   ADMISSIONS.  223 

prima  facie  evidence,  by  admission  that  he  accepted  the  bill.^  So, 
in  an  action  by  the  assignees  of  a  bankrupt,  against  an  auctioneer, 
to  recover  the  proceeds  of  sales  of  a  bankrupt's  goods,  the  defend- 
ant's advertisement  of  the  sale,  in  which  he  described  the  goods 
as  "  the  property  of  D.,  a  bankrupt,"  was  held  a  conclusive  admis- 
sion of  the  fact  of  bankruptcy,  and  tliat»the  defendant  was  acting 
under  his  assignees.^  So,  also,  an  undertaking  by  an  attorney, 
"  to  appear  for  T.  and  R.,  joint  owners  of  the  sloop  '  Arundel,'  " 
was  held  sufficient  primd  facie  evidence  of  ownership.^ 

§  195.  Oljier  admissions  are  implied  from  assumed  character^ 
language^  and  conduct,  which,  though  heretofore  adverted  to,^  may 
deserve  further  consideration  in  this  place.  Where  the  existence 
of  any  domestic,  social,  or  official  relation  is  in  issue,  it  is  quite 
clear  that  any  recognition,  in  fact,  of  that  relation,  is  primd  facie 
evidence  against  the  person  making  such  recognition,  that  the 
relation  exists.^  This  general  rule  is  more  frequently  applied 
against  a  person  who  has  thus  recognized  the  character  or  office 
of  another ;  but  it  is  conceived  to  embrace,  in  its  principle,  any 
representations  or  language  in  regard  to  himself.  Thus,  where 
one  has  assumed  to  act  in  an  official  character,  this  is  an  admis- 
sion of  his  appointment  or  title  to  the  office,  so  far  as  to  render 
him  liable,  even  criminally,  for  misconduct  or  neglect  in  such 
office.^  So,  where  one  has  recognized  the  official  character  of 
another,  by  treating  with  him  in  such  character,  or  otherwise,  this 
is  at  least  prima  facie  evidence  of  his  title,  against  the  party  thus 
recognizing  it.'^     So,  the  allegations  in  the  declaration  or  plead- 

M.  &  Rob.  297.     The  case  of  Rex.  v.  Mer-  officer,  for  returning  false  musters  ;  Rex 

ceron,  2  Stark.  R.  366,  which  seems  to  the  v.    Kerne,    2    St.    Tr.   957,  960;    Rex   v. 

contrary,  is  questioned  and  explained  by  Bronimick,  Id.  961,  962;  Rex  v.  Atkins, 

Lord   Tenterden,   in    Rex    v.    Gilham,    1  Id.  964,  which  were  indictments  for  high 

Mood.  Cr.  Gas.  203.     See  infra,  §§  225,  treason,  being  popish  priests,  and  remain- 

451 ;  Regina  v.  Garbett,  1  Denis.  C.  C.  ing  forty  days  within  the  kingdom ;  Rex 

236.  V.  Borrett,  6  C.  &  P.  124,  an  indictment 

1  Holt  V.  Squire,  Ry.  &  M.  282.  against  a  letter-carrier,  for  embezzlement ; 

2  Maltby  v.  Ghristie,  1  Esp.  342,  as  ex-  Trowbridge  v.  Baker,  1  Cowen,  251, 
pounded  by  Lord  EUenborough,  in  Ran-  against  a  toll-gatherer,  for  penalties ;  Lis- 
kin  V.  Horner,  16  East,  193.  ter  v.  Priestley,  Wightw.  67,  against  a  col- 

3  Marshall  v.  Cliff,  4  Campb.  133,  per  lector,  for  penalties.  See  also  Cross  v. 
Ld.  EUenborough.  Kaye,  6  T.  R.  663 ;  Lipscombe  v.  Holmes, 

4  Supra,  §  27.  2  Campb.  441 ;  Radford  v.  Mcintosh,  3  T. 

5  Dickinson  v.  Coward,  1  B.  &  A.  677,  R.  632. 

679,  per  Ld.  EUenborough ;  Radford,  q.  t.  ^  Peacock  v.  Harris,  10  East,  104,  by  a 

V.  Mcintosh,  3  T.  R.  632.  renter  of  turnpike  tolls,  for  arrearages  of 

6  Bevan  v.  Williams,  3  T.  R.  635,  per  tolls  due ;  Radford  v.  Mcintosh,  3  T.  R. 
Ld.  Mansfield,  in  an  action  against  a  cler-  632,  by  a  farmer-general  of  the  post-horse 
gyman,  for  non-residence  ;  Rex  v.  Gard-  duties,  against  a  letter  of  horses,  for  ear- 
ner, 2   Campb.   513,  against  a    military  tain  statute  penalties ;  Pritchard  v.  Walker, 


224  LAW   OF   EVIDENCE.  [PART   II. 

ings  in  a  suit  at  law  have  been  held  receivable  in  evidence  against 
the  party,  in  a  subsequent  suit  between  him  and  a  stranger,  as 
Ills  soleuni  admission  of  the  trulh  of  the  facts  recited,  or  of  his 
understanding  of  the  meaning  of  an  instrument ;  though  the  judg- 
ment could  not  be  made  available  as  an  estoppel,  unless  between 
the  same  parties,  or  others  in  })rivity  with  them.^ 

§  106.  Admissions  implied  from  the  conduct  of  the  party  are 
governed  by  the  same  ])rinciples.  Thus,  the  suppression  of  docu- 
ments is  an  admission  that  their  contents  are  deemed  unfavorable 
to  the  party  suppressing  them.^  The  entry  of  a  cliarj^e  to  a  par- 
ticular person,  in  a  tradesman's  book,  or  the  making-out  of  a  bill 
of  parcels  in  liis  name,  is  an  admission  that  they  were  furnished 
on  his  credit.^  The  omission  of  a  claim  by  an  insolvent,  in  a 
schedule  of  the  debts  due  to  him,  is  an  admission  that  it  is  not 
due.^  Payment  of  money  is  an  admission  against  the  payer,  that 
the  receiver  is  the  proper  person  to  receive  it ;  but  not  against  the 
receiver,  that  the  payer  was  the  person  who  was  bound  to  pay  it ; 
for  tlie  party  receiving  payment  of  a  just  demand  may  well  assume, 
without  in(iuiry,  that  the  person  tendering  the  money  was  the 
person  legally  bound  to  pay  it.^  Acting  as  a  bankrupt,  under  a 
commission  of  bankruptcy,  is  an  admission  that  it  was  duly  issued.'' 
Asking  time  for  the  payment  of  a  note  or  bill  is  an  admission  of 

3  C.  &  r.  212,  by  tlie  clerk  of  flie  trustees  Ad.  &  El.  695,  703,  per  Ld.  Denman,  C. 
of  a  turnpike  road,  aj;aii]st  one  of  the  J.  See  furtlier,  DivoU  v.  Leadbetter,  4 
trustees  ;  Dickinson  v.  Coward,  1  B.  &  A.  Pick.  220;  Crofton  v.  Poole,  1  B.  &  Ad. 
077,  by  the  assij^nee  of  a  bankrupt,  against  568;  Kex  v.  Barnes,  1  Stark.  R.  213; 
a  delttor,  who  had  made  tlie  assignee  a  Phil.  &  Am.  on  Evid.  o6U,  370,  371 ;  1 
])artial  payment.     In  Berryman  v.  Wise,  Phil.  Evid.  351,  352. 

4  T.  \i.  oijtj,  wiiich  was  an  action  by  an  i  Tiley  v.  Cowling,  1  Ld.  Raym.  744; 
attorney  for  slander,  in  charging  him  witii  Bull.  N.  P.  213,  s.  c.  See  sn/ira,  §§  171, 
swindling,  and  tin-eatening  to  have  him  Hl4;  infra,  §§  205,  210,  527<'i,  555;  Rob- 
struck  off  tlie  roll  of  attorneys,  the  court  inson  v.  Swett,  3  Gieenl.  316 ;  Wells  v. 
belli  that  this  threat  imported  an  admis-  Compton,  3  Rob.  Louis.  R.  171  ;  Parsoiis 
sion  that  the  plaintiff  was  an  attorney.  ?-.  Copoland,  33  Maine,  370;  |  Williams  r. 
Cummin  v.  Smith,  2  Serg.  &  R.  440.  But  Cheney,  3  Gray,  215;  Jiidd  r.  (;il)l)s,  lb. 
see  Smith  v.  Taylor,  1  New  R.  11)6,  in  53',).  See  Church  v.  Shelton,  2  Curtis,  C. 
which  the  learned  judges  were  equally  C.  271;  State  v.  Littlefielil,  3  R.  I.  121.] 
divided  upon  a  point  somewhat  similar,  -  James  v.  Biou,  2  Siiu.  &  Stu.  600, 
in  the  ease  of  a  physician ;  but  in  the  for-  606 ;  Owen  v.  Flack,  Id.  606. 

mer  case,  the  roll  of  attorneys  was  ex-  ^  Storr  et  ul.  v.  Scott,  6  C.  &  P.  241 ; 

])ressly  mentioned,  while  in  the  latter,  the  Thompson  v.  Davenport,  0  B.  &  C.  78,  86, 

j)laintiff  was  merely  spoken  of  as  "  Doctor  1)1),  01. 

S.,"  and  the  defendant  had  been  emi)loyed  ■*  Nicliolls  v.  Downes,  1  INI.  &  Rob.  13 ; 

as  his  apothecary,     ll,  however,  the  slan-  Hart  r.  Newman,  3  Campb.  13.     See  also 

der  relates  to  the  want  of  qualification,  it  Tilghman  v.  Fislier,  9  Watts,  441. 

was   hell!  by   Mansfield,   C.  J.,  that   the  ''  James  v.  Biou,  2  Sim.  &  Stu.  GOO, 

plaintiff  must  prove  it;  but  not  where  it  606;  Chiipman  v.  Beard,  3  Anstr  942. 

was  confined  to  mere  misconduct.    1  .New  "  Like  v.  Howe,  0  Esp.  20;    Clark  y. 

11.207.    See  to  this  ]>i)int,  Moises  ?;.  Thorn-  Clark,  lb.  61. 

ton,  8  T.  R.  303;   Wilson  v.  Carnegie,  1 


CHAP.  XI.]  OF   ADMISSIONS.  225 

the  holder's  title,  and  of  the  signature  of  the  party  requesting  the 
favor  ;  and  the  indorsement  or  acceptance  of  a  note  or  bill  is  an 
admission  of  the  truth  of  all  the  facts  which  arc  recited  in  it.^ 

§  197.  Admissions  may  also  be  implied  from  the  acquiescence  of 
the  party.  But  acquiescence,  to  have  the  effect  of  an  admission, 
must  exhibit  some  act  of  the  mind,  and  amount  to  voluntary 
demeanor  or  conduct  of  the  party .^  And  whether  it  is  accjuies- 
cence  in  the  conduct  or  in  the  language  of  others,  it  must  plainly 
appear  that  such  conduct  was  fully  known,  or  the  language  fully 
understood  by  the  party,  before  any  inference  can  be  drawn  from 
his  passiveness  or  silence.  The  circumstances,  too,  must  be  not 
only  such  as  afforded  him  an  opportunity  to  act  or  to  speak,  but 
such  also  as  would  properly  and  naturally  call  for  some  action  or 
reply,  from  men  similarly  situated.^  Thus,  where  a  landlord 
quietly  suffers  a  tenant  to  expend  money  in  making  alterations 
and  improvements  on  the  premises,  it  is  evidence  of  his  consent  to 
the  alterations.*  If  the  tenant  personally  receives  notice  to  quit 
at  a  particular  day,  without  objection,  it  is  an  admission  that  his 
tenancy  expires  on  that  day.^  Thus,  also,  among  merchants,  it  is 
regarded  as  the  allowance  of  an  account  rendered,  if  it  is  not 
objected  to,  without  unnecessary  delay.^  A  trader  being  inquired 
for  and  hearing  himself  denied,  may  thereby  commit  an  act  of 


1  Helmsley  v.  Loader,  2  Campb.  450 ;  he  may  read  his  immediate  replies.  Roe 
Critchlow  v.  Parry,  Id.  182;  Wilkinson  v.  v.  Day,  7  C.  &  P.  705.  So,  it  seems,  he 
Ludwidge,  1  Stra.  648 ;  Robinson  v.  Yar-  may  prove  a  previous  conversation  with 
row,  7  Taunt.  455 ;  Taylor  v.  Croker,  4  the  party,  to  show  the  motive  and  inten- 
Esp.  187;  Bass  ;;.  Clive,  4  M.  &  S.  13.  tion  in  writing  them.  Reay  ;.'.  Richardson, 
See  further,  Rayley  on  Bills,  by  Phillips  2  C.  M.  &  R.  422  ;  [Commonwealth  v. 
&  Sewall,  p.  4ya-506 ;  Phil.  &  Am.  on  Harvey,  1  Gray,  487,  48'J ;  Boston  &  W. 
Evid.  383,  n.  (2);  1  Phil.  Evid.  364,  n.  R.  R.  Corp.  v.  Dana,  lb.  83,  104;  Com- 
(1),  and  cases  tliere  cited.  monwealth  y.  Kenney,  12  Met.  235;  Brain- 

2  Allen  V.  McKeen,  1  Sumn.  314;  Car-  ard  v.  Buck,  25  Vt.  573;  Corser  v.  Paul, 
ter  V.  Bennett,  4  Flor.  Rep.  340.  41  N.  H.  24.J 

3  To  affect  a  party  with  the  statements  ■*  Doe  v.  Allen,  8  Taunt.  78,  80 ;  Doe 
of  others,  on  the  ground  of  his  implied  v.  Pye,  1  Esp.  366;  Neale  v.  I'arkin,  1 
admission  of  their  truth  by  silent  acqui-  Esp.  229.  See  also  Stanley  ;;.  White,  14 
escence,  it  is  not  enough  that  they  weje  East,  332. 

made  in  his  presence ;    for  if  they  were  ^  Doe  v.  Biggs,  2  Taunt.  109 ;  Thomas 

given  in  evidence  in  a  judicial  proceeding,  v.  Thomas,  2  Campb  647  ;  Doe  v.  Poster, 

he  is  not  at  liberty  to  interpose  when  and  13  East,  405 ;  Oakapple  v.  Copous,  4  T. 

how  lie  pleases,  though  a  party  ;  and  there-  R.  361 ;    Doe  v.   Woombwell,  2  Campb. 

fore  is  not  concluded.    IMelen  v.  Andrews,  559. 

1  M.  &  M.  836.  See  also  Allen  v.  RIc-  "  Sherman  v.  Sherman,  2  Verm.  276. 
Keen,  1  Sumn.  217,  313,  814;  Jones  v.  Hutchins,  Ld.  Com.,  mentioned  "a  second 
Morrell,  1  Car.  &  Ivir.  266  ;  Neile  v.  Jakle,  or  third  post,"  as  tlie  ultimate  period  of 

2  Car.  &  Kir.  709;  Peele  v.  Merch.  Ins.  objection.  But  Lord  Hardwicke  said,  that 
Co.  3  Mason,  R.  81;  Hudson  v.  Harrison,  if  the  person  to  whom  it  was  sent  kept 

3  B.  &  B.  97  ;  infra,  §§  201,  215,  287.  If  the  account  "  for  any  length  of  time,  with- 
letters  are  offered  against  a  party,  it  seems  out  making  any  objection,"  it  became  a 


22G  LAW    OF   EVIDENCE.  [PART    II. 

bankruptcy.^  And  generally,  where  one  knowingly  avails  himself 
of  another's  acts,  clone  for  his  benefit,  this  will  be  held  an  admis- 
sion of  his  obligation  to  pay  a  reasonable  compensation .^ 

[*§  197a.  The  former  rule  of  evidence,  that  one's  silence 
shall  be  construed  as  a  virtual  assent  to  all  that  is  said  in  his 
presence,  is  susceptible  of  great  abuse,  and  calls  for  a  course  of 
conduct,  which  prudent  and  quiet  men  do  not  generally  adopt. 
If  that  rule  be  sound  to  the  full  extent,  as  laid  down  in  some  of 
the  early  cases,  it  would  be  in  the  i)Ower  of  any  evil-disposed  per- 
son to  always  ruin  his  adversary's  case,  by  drawing  him  into  a 
compulsory  altercation  in  the  presence  of  chosen  listeners,  who 
would  be  sure  to  misrepresent  what  he  said.  Nothing  could  be 
more  unjust  or  unreasonable.  Hence,  in  more  recent  cases,  the 
rule,  in  some  states,  has  undergone  very  important  qualifications. 
The  mere  silence  of  one,  when  facts  are  asserted  in  his  presence, 
is  no  ground  of  presuming  his  acquiescence,  unless  the  conversa- 
tion were  addressed  to  him,  under  such  circumstances  as  to  call  for 
a  reply.  The  person  must  be  in  a  position  to  require  the  infor- 
mation, and  he  must  ask  it  in  good  faith,  and  in  a  manner  fairly 
entitling  him  to  expect  it,  in  order  to  justify  any  inference  from 
the  mere  silence  of  the  party  addressed.  If  the  occasion,  or  the 
nature  of  this  demand,  or  the  manner  of  making  it,  will  reason- 
ably justify  silence,  in  a  discreet  and  prudent  man,  no  unfavorable 
inference  therefrom  should,  on  that  account,  be  made  against  the 
party.  And  wdicthcr  the  silence  be  any  ground  of  presumption 
against  the  party  will  always  be  a  question  of  law,  unless  there  is 
confhct  in  the  proof  of  the  attending  circumstances.^     The  same 

stated  account.    "Willis  v.  Jernegan,  2  Atk.  ^  Key  v.  Sliaw,  8  Bing.  320. 

252.      See    also    Froelaiul    v.    Heron,    7  ^  Morris   v.   Burdett,    1    Campb.    218, 

Cranch,  147,  151 ;  Murray  v.  Tolland,  3  where  a  candidate  made  use  of  the  liust- 

Joluis.  Ch.  575 ;  Tickel  v.  Short,  2  Ves.  ings   erected  for  an  election ;    Abbott  v. 

28U.     Daily  entries  in  a  book,  constantly  Inhabitants   of   llernion,    7    Greenl.    118, 

open  to  tile  party's  inspection,  are  admis-  where   a   schoolliouse   was   used    by   the 

sions  against  him  of  the  matters  therein  sc^hool  district ;  Ilayden  v.  Inhabitants  of 

stated-     Alderson   v.    Clay,   1    Stark.   R.  ]\Iadison,  Id.  7G,  a  case  of  partial  payment 

405;  Wiltzie  v.  Adamson,  1  Phil.   Evid.  for  making  a  road. 

357.  Sl'C  further,  Coe  v.  Ilutton,  1  Serg.  "  [*  Mattocks  v.  Lyman,  16  Vt.  R.  113 ; 
&  R.  39« ;  McBride  v-  Watts,  1  McCord,  Vail  v.  Strong,  10  Id.  457 ;  Gale  *'.  Liu- 
384;  Corps  v.  Robinson,  2  W:ish.  C.  C.  coin,  11  Vt.  152.  Post,  ^  199.  Where  a 
11.  388.  So,  the  members  of  a  company  person  is  inquired  of  as  to  a  matter  which 
are  chargeable  with  knowledge  of  the  en-  may  affect  liis  pecuniary  interests,  he  has 
tries  in  their  books,  made  by  their  agent  the  right  to  know  whether  the  party  ma- 
in the  course  of  his  business,  and  with  king  the  inquiry  is  entitled  to  make  it  as 
their  true  meaning,  as  understood  by  the  affecting  any  interest  which  he  represents, 
auent.  Allen  v.  Coit,  6  Hill  (N.  Y.),  R.  and  for  the  protection  of  which  he  requires 
218.  the  information  sought.    And  miless  he  is 


CHAP.  XI.]  OF   ADMISSIONS.  227 

rule  obtains  as  to  letters  addressed  to  the  party .^  But  if  the  party 
consent  to  give  any  explanation  it  becomes  evidence,  although 
drawn  from  him  by  a  false  suggestion.^  And  even  a  plea  of  "  guilty," 
in  a  criminal  proceeding  against  the  party  for  assault  and  battery, 
will  be  evidence  against  him  in  a  civil  action  for  the  same.-^  But 
as  a  general  rule,  admissions  in  the  pleadings  in  one  suit  will 
n"bn3e~evrdence  against  the  party  inanother  suit^  unless  signed  by 
him  pe]\sonally,  in  which  case  there  is  no  reason  why  they  should 
not  be  so  regarded,  to  the  same  extent  as  any  other  admissions.* 
Admissions  in  the  same  action  for  one  purpose  may  be  used  for 
another,  or  where  in  assumpsit  against  two,  upon  a  joint  promise, 
both  pleaded  non-assumpsit  and  one  infancy.  The  plaintiff  ad- 
mitted the  infancy  of  one  defendant  upon  the  record  and  discon- 
tinued as  to  that  defendant.  Held,  that  he  could  not  recover 
against  the  other,  since  his  admission  showed  conclusively  that 
there  was  no  joint  promise.^  The  American  practice,  however,  is 
different  upon  this  point.  It  is  here  held  that  the  plaintiff  may 
discontinue  as  to  the  infant,  and  proceed  against  the  other  joint 
contractors  to  judgment.^] 

§  198.  The  possession  of  documents,  also,  or  the  fact  of  constant 
access  to  them,  sometimes  affords  ground  for  affecting  parties  with 
an  implied  admission  of  the  statements  contained  in  them.  Thus, 
the  rules  of  a  club,  contained  in  a  book  kept  by  the  proper  officer, 
and  accessible  to  the  members  ;  ^  charges  against  a  club,  entered 
by  the  servants  of  the  house,  in  a  book  kept  for  that  purpose,  open 
in  the  club-room ;  ^  the  possession  of  letters,^  and  the  like  ;  are 
circumstances  from  which  admissions  by  acquiescence  may  be 
inferred.     Upon  the  same  ground,  the  shipping  list  at  Lloyd's, 


fairly  informed  upon  these  points,  he  is  not         ^  Alderson  i-.  Clay,  1   Stark.  R.  405; 

bound  to  give  information,  and  will  not  be  Wiltzie  v.  Adamson,  1  Phil.  Evid.  357. 
allbctcd  in  his  pecuniary  interests  in  con-         ^  Hewitt );.  Piggott,  5  C.  &  P.  Tlj;  Eex 

sequence  of  refusal,    llackett  v.  Callender,  v.  Watson,  2  Stark.  R.  140 ;  Home  Tooke's 

32  Vt.  R.  97.]  case,  25  St.  Tr.  120.     But  the  possession 

1  [*  Commonwealth  v.  Jeffreys,  7  Allen,  of  unanswered  letters  seems  not  to  be,  of 
548;  Same  v.  Eastman,  1  Cush.  180.  itself,  evidence  of  acquiescence  in  their 

2  Higgins  V.  Dellinger,  22  Mis.  307.  contents ;  and,  therefore,  a  notice  to  pro- 

3  Birchard  v.  Booth,  4  Wis.  67.  duce  such  letters  will  not  entitle  the  ad- 
*  Mariauski    y.  Cairns,    1  Macq.   Ho.  verse  party  to  give  evidence  of  their  entire 

Lds.  Cas.  212.  contents,  but  only  of  so  much  as  on  other 

0  Boyle  V.  Webster,  17  Q.  B.  950.  grounds  would  be  admissible.     Fau-lee  v. 

6  Hartness  v.  Thompson,  5  Jolms.  160 ;  Denton,  3  C.  &  P.   103.      And   a  letter 

Tappan  v.  Abbott,  cited  Pick.  502 ;  Wood-  found  on  the  prisoner  was  held  to  be  no 

ward  V.  NewhaU,  Id.  500 ;  Allen  v.  Butler,  evidence  against  him  of  the  facts  stated  in 

9  Vt.  R.  122.]  it,  in  Rex  v.  Pluraer,  Rus.  &  Ry.  C.  C. 

T  Raggett  V.  Musgrave,  2  C.  &  P.  556.  264  ;  [People  v.  Green,  1  Parker,  C.  R.  11.] 


228  L^W  OP   EVIDENCE.  [PART  II. 

Stating  the  time  of  a  vessel's  sailing,  is  held  to  be  primd  facie  evi- 
dence against  an  underwriter,  as  to  what  it  contains.^ 

§  199.  But,  in  regard  to  admissions  inferred  from  acquiescence  in 
the  verbal  statements  of  others,  the  maxim,  Qui  tacet  consentire  vide- 
Uir,  is  to  be  applied  with  careful  discrimination.     "  Nothing,"  it  is 
said,  "  can  be  more  dangerous   than  this  kind  of  evidence.     It 
should  always  be  received  with  caution  ;    and  never  ought  to  be 
received  at  all,  unless  the  evidence  is  of  direct  declarations  of  that 
kind  which  naturally  calls  for  contradiction  ;  some  assertion  made 
to  the  party  with  respect  to  his  right,  which,  by  his  silence,  he 
acquiesces  in."^     A  distinction  has  accordingly  been  taken  be- 
tween declarations  made  by  a  party  interested  and  a  stranger; 
and  it  has  been  held,  that,  while  what  one  party  declares  to  the 
other,  without  contradiction,  is  admissible  evidence,  what  is  said 
by  a  tliird  person  may  not  be  so.     It  may  be  impertinent,  and  best 
rebuked  by  silence  ;    but  if  it  receives  a  reply,  the  reply  is  evi- 
dence.    Therefore,  what  the  magistrate,  before  whom  the  assault 
and  battery  was  investigated,  said  to  the  parties,  'IVas  held  inad- 
missible, in  a  subsequent  civil  action  for  the  same  assault.^     If  the 
declarations  are  those  of  third  persons,  the  circumstances  must  be 
such  as  called  on  the  party  to  interfere,  or  at  least  such  as  would 
not  render  it  impertinent  in  him  to  do  so.     Therefore,  where,  in  a 
real  action  upon  a  view  of  the  premises  by  a  jury,  one  of  the  chain- 
bearers  was  the  owner   of  a   neighboring   close,  respecting   the 
bounds  of  which  the  litigating  parties  had  much  altercation,  their 
declarations  in  his  presence  were  held  not  to  be  admissible  against 
him,  in  a  subsequent  action  respecting  his  own  close.^     But  the 
silence  of  the  party,  even  where  the  declarations  are  addressed  to 
himself,  is  worth  very  little  as  evidence,  where  he  has  no  means 
of  knowing  the  truth  or  falsehood  of  the  statement.^ 

1  Macintosh  v.  Marshall,  11  M.  &  W.  dence  against  B.    Rex  j;.  Appleby,  3  Stark. 

216_  R.  33.     Nor  is  a  deposition,"  given  in  tlie 

-'  14  Rerg.  &  R.  393,  per  Duncan,  C.  J. ;  person's  presence,  in  a  cause  to  wliiclf  lie 

2  C.  &  I'.  l'J3,  iier  Best,  C.  J.     And  see  was  not  a  party,  admissible  against  liim. 

McClenkan    /;.    McMillan,    6    Barr,    3«J0,  Melen  r.  Andrews,  1  M.  &  M.  o;itJ.  _^  Sec 

wbere  tiiis  maxim  is  expounded  and  aj)-  also  Fairlie  i>.  Denton,  3  C.  &  V.  ll)3,  per 

plied.     See  also  Commonwealth  o.  Call,  Lord  Tenterden ;    Tait  on   Evidence,  p. 

2[  Pick.  515;  [Commonwealth  r.  Kenney,  2U3.      So  in  the  Roman  law,  "  Confessio 

12  Met.  235,  237  ;  supra,  §  197.]  facta  sou  pnBsum[)ta  ex  taciturnitate,  in 

'■^  Child  v.  (Jrace,  2  C.  &  B.  193.  ali(iuo  judicio,  non  nocebit  in  alio."     Mas- 

*  Moore  '-.  Snul'li,  14  Serg.  &  R.  388.  cardus  De  Probat.  vol.  1,  concl.  348,  n.  31 

Where  A  &  B  were  charged  with  a  joint  [Larry  v.  Sherburne,  2  Allen,   35;    Hil- 

felony,  what  A  stated  before  the  exami-  dreth  v.  Martin,  3  Allen,  371 ;  Fenno  v. 

ning  magistrate,  respecdng  B's  participa-  Weston,  31  Vt.  345.] 
tiou  in  the  cruue,  is  not  admissible  evi-  »  ilayslep  v.  Gymer,  1  Ad.  &  El.  162, 


CHAP.  XI.]  OF   ADMISSIONS.  229 

§  200.  With  respect  to  all  verbal  admissions,  it  may  be  observed 
that  they  ought  to  be  received  loitJi  great  caution.  The  evidence, 
consisting  as  it  does  in  the  mere  repetition  of  oral  statements,  is 
subject  to  much  imperfection  and  mistake ;  the  party  himself 
either  being  misinformed,  or  not  liaving  clearly  expressed  his  own 
meaning,  or  the  witness  having  misunderstood  him.  It  frequently 
happens,  also,  that  the  witness,  by  unintentionally  altering  a  few 
of  the  expressions  really  used,  gives  an  eftect  to  the  statement 
completely  at  variance  with  what  the  party  actually  did  say.^  But 
where  the  admission  is  deliberately  made  and  precisely  identified, 
tlie  evidence  it  affords  is  often  of  the  most  satisfactory  nature.^ 
[*  In  a  somewhat  extended  experience  of  jury  trials,  we  have  been 
compelled  to  the  conclusion  that  the  most  unreliable  of  all  evi- 
dence is  that  of  the  oral  admissions  of  the  party,  and  especially 
where  they  purport  to  have  been  made  during  the  pendency  of  the 
action,  or  after  the  parties  were  in  a  state  of  controversy.  It  is 
not  uncommon  for  different  witnesses  of  the  same  conversation 
to  give  precisely  opposite  accounts  of  it ;  and  in  some  instances 
it  will  appear,  that  the  witness  deposes  to  the  statements  of  one 
party  as  coming  from  the  other,  and  it  is  not  very  uncommon  to 
find  witnesses  of  the  best  intentions  repeating  the  declarations  of 
the  party  in  his  own  favor  as  the  fullest  admissions  of  the  utter 
falsity  of  his  claim.  When  we  reflect  upon  the  inaccuracy  of 
many  witnesess,  in  their  original  comprehension  of  a  conversation  ; 
their  extreme  liability  to  mingle  subsequent  facts  and  occurrences 
with  the  original  transactions  ;  and  the  impossibility  of  recollecting 
the  precise  terms  used  by  the  party  or  of  translating  them  by  exact 

165,  per  Parke,  J.      See  further  on  the  v.  Malin,  1   Wend.  625,   652;    Lench   v. 

subject  of  tacit  admissions,  The  State  v.  Lench,  10  Ves.  517,  518,  cited  witli  ap- 

Eawls,  2  Nott  &  McCord,  301 ;    Batturs  probation   in   6  Johns.   Cli.  412,    and   in 

V.  Sellers,  5  Harr.  &  J.  117,  119.  Smith  v.  Burnham,  3  Sunin.  438 ;  Storid 

1  Earle  v.  Picken,  5  C.  &  P.  542,  note,  ?;. 'Ramsey,  i  Monroe,  236,  239;  Myers  v. 

per  Parke,  J ;  Rex  v.  Simons,  6  C.  &  P.  Baker,  Hardin,  544,  549;    Perry  v.  Gej- 

510,  per  Alderson,  B. ;  Williams  v.  Wil-  beau,  5  Martin,  n.  s.  18, 19.     Law  v.  Mer- 

liams,  1  Hagg.  Consist.  R.  304,  per  Sir  rils,  6  Wend.  268,  277.      It  is  aNo  well 

William  Scott;  Hope  v.  Evans,  1  Sm.  &  settled  that  verbal  admissions,  li:i>iil\  and 

M.  Ch.  R.  195.      Alciatus  expresses  the  inadvertently  made  without  investigation, 

sense  of  tiie  civilians  to  the  same  effect,  are  not  binding.     Salein  Bank  r.  Glouces- 

wliere,  after  speaking  of  the  weight  of  ju-  ter  Bank,  17  Mass.  27  ;  Barber  v.  Gingell, 

dicial  admissions,  "  propter  majorem  certi-  3  Esp.  60.     See  also  Smith  v.  Burnham,  3 

tudiuem,  quam  in  se  habet,"  he  adds —  Sumn.  435,  438,  439  ;  Cleveland  r.  Burton, 

"  Qua;  ratio  non  habet  locum,  quando  ista  11   Vermont,  R.   138;    Stephens   v.  Vro- 

confessio  probaretur  per  testes;    imo  est  man,  18  Barb.  250;  Printup  v.  Mitchell, 

tninus  certa  cceteris  probutionibus,"  &c.     Al-  17  Geo.  558. 

ciat.  de  Praesump.  Pars.  Secund.  Col.  682,  -  Rigg  v.  Curgenven,  2  Wils.  305,  399  ; 

n.  6.     See  supra,  §§  96,  97;    2  Poth.  on  Glassford  on  Evid.  326;    Commonwealth 

Ubl.  by  Evans,  App.  No.  16,  §  13  ;  Malin  v.  Knapp,  9  Pick.  507,  508,  per  Putnam,  J. 
VOL.  I.                                                 20 


230  LAW   OF   EVIDENCE.  [PART  II. 

equivalents,  we  must  conclude  there  is  no  substantial  reliance  upon 
this  class  of  testimony.  The  fact,  too,  that  in  the  final  trial  of 
open  questions  of  fact,  both  sides  are  largely  supported  by  evi- 
dence of  this  character,  in  the  majority  of  instances,  must  lead  all 
cautious  triers  of  fact  greatly  to  distrust  its  reliability.] 

§  201.  We  are  next  to  consider  the  effect  of  admissions,  whon 
proved.  And  here  it  is  first  to  be  observed,  that  the  ivliole  admis- 
non  is  to-be  taken  together ;  for  though  some  part  of  it  may  contain 
matter  favorable  to  the  party,  and  the  object  is  only  to  ascertain 
that  which  he  has  conceded  against  himself,  for  it  is  to  this  only 
that  the  reason  for  admitting  his  own  declarations  applies,  namely, 
the  great  probability  that  they  are  true ;  yet,  unless  the  whole  is 
received  and  considered,  the  true  meaning  and  import  of  the  part, 
which  is  good  evidence  against  him,  cannot  be  ascertained.  But 
though  the  whole  of  what  he  said  at  the  same  time,  and  relating 
to  the  same  subject,  must  be  given  in  evidence,  yet  it  does  not 
follow  that  all  the  parts  of  the  statement  are  to  be  regarded  as 
equally  worthy  of  credit ;  but  it  is  for  the  jury  to  consider,  under 
all  the  circumstances,  how  much  of  the  whole  statement  they  deem 
worthy  of  belief,  including  as  well  the  facts  asserted  by  the  party 
in  his  own  favor,  as  those  making  against  him.^ 

1  Smith  V.  Blandy,  Ry.  &  M.  257,  per  wholly  distinct  from  tliose  read  by  the 
Best,  J.;  Cray  f.  Halls, /i.  c//.  per  Abbott,  adversary,  althoiifrli  found  in  the  same 
C.  J. ;  Berinon  i'.  Woodbridge,  2  Doug,  answer  and  pleadings,  an<l  tliC  rule  is 
788 ;  Rex  c.  Clewes,  4  C.  &  P.  221,  per  practically  the  same  at  law,  as  wiien  the 
Littledale,  J. ;  McClenkan  v.  McMillan,  6  adversary  reads  one  entry  in  a  book,  it  will 
Barr,  300  ;  Mattocks  r.  Lyman,  3  Washb.  not  justify  reading  the  entire  book,  unless 
98;  Wilson  v.  Calvert,  8  Ala.  757;  Yar-  in  some  way  connected  with  the  entry 
borough  V.  Moss,  'J  Ala.  382.  See  supra,  read.  Abbott,  Ch.  J.,  in  Catt.  v.  Howard, 
§  152;  Dorian  v.  Douglass,  0  Barb.  s.  c.  3  Stark.  N.  P.  C.  3.  Nor  can  the  party 
li.  451.  A  similar  rule  prevails  in  chan-  read  distinct  and  disconnected  paragraphs 
eery.  Gresley  on  Evid.  13.  [*  The  party,  in  a  newspaper,  because  one  has  been 
by  reading  from  an  answer  in  the  case  read  by  his  adversary.  Darby  y.  ( )useley, 
to  prove  the  admission  of  having  endorsed  1  H.  &  N.  1 ;  or  a  series  of  copies  of  let- 
a  promissory  note,  renders  all  that  portion  ters  inserted  in  a  copy  book,  because 
of  the  answer  evidence,  although  embra-  one  has  been  read.  Sturge  v.  Hucliaiian, 
cing  obligations  of  defence.  Giidersleeve  2  M.  &  Hob.  90. J  See  also  the  Queen's 
t;.  Mahoney,  5  Duer,  383.  And  it  has  been  case,  2  Brod.  &  Bing.  298,  per  Abbott, 
said,  that  the  party  against  whom  an  C.  J. ;  Handle  v.  Blackburn,  5  Taunt, 
itnswer  in  chancery  is  produced,  ma}'  245 ;  Thompson  v.  Austen,  2  D.  &  II. 
claim  to  have  the  whole  bill  as  well  as  358;  Fletcher  v.  Froggart,  3  C.  &  P. 
the  answer  read  as  part  of  his  adversa-  509 ;  Yates  v.  Camsew,  3  C.  &  P.  99,  per 
ry's  case,  upon  the  same  ground,  that,  Lord  Tenterden ;  Cooper  v.  Smith,  15 
where  one  proves  answers  in  conversation  East,  103,  107;  Whitwell  v.  Wyer,  11 
against  a  party,  lie  may  insist  upon  having  Mass.  0,  10 ;  Garey  v.  Nicholson,  24  Wend, 
the  questions  to  which  he  made  the  replies  350;  Kelsey  v.  Bush,  2  Hill,  K.  440;  in- 
put in  evidence.  Penned  v.  Meyer,  2  M.  fra,  §§  215,  218,  and  cases  there  cited. 
&  Rob.  98,  by  Tindal,  Ch.  J.;  s.  c.  8,  C.  &  Where  letters  in  correspondence  between 
P.  470.  But  the  rule  in  equity  does  not  the  plaintiff  and  defendant  were  offered  in 
extend   to   putting  in    evidence    matters  evideuce  by  the  former,  it  was  held  that 


CHAP.  XI.]  OF   ADMISSIONS.  231 

§  202.  Where  the  admission,  whether  oral  or  in  writing,  con- 
tains matters  stated  as  mere  hearsay,  it  lias  been  made  a  question 
whether  such  matters  of  hearsay  are  to  be  received  in  evidence. 
Mr.  Justice  Chambre,  in  the  case  of  an  answer  in  chancery,  read 
against  the  party  in  a  subsequent  suit  at  law,  thought  that  portion 
of  it  not  admissible  ;  "  for,"  he  added,  "  it  appears  to  me,  that 
where  one  party  reads  a  part  of  the  answer  of  the  other  party  in 
evidence,  he  makes  the  whole  admissible  only  so  far  as*  to  waive 
any  objection  to  the  competency  of  the  testimony  of  the  party 
making  the  answer,  and  that  he  does  not  thereby  admit  as  evidence 
all  the  facts,  which  may  happen  to  have  been  stated  by  way  of 
hearsay  only,  in  the  course  of  the  answer  to  a  bill  filed  for  a 
discovery."  ^  But  where  the  answer  is  offered  as  the  admission  of 
the  party  against  whom  it  is  read,  it  seems  reasonable  that  the 
whole  admission  should  be  read  to  the  jury,  for  the  purpose  of 
showing  under  what  impressions  that  admission  was  made,  though 
some  parts  of  it  be  only  stated  from  hearsay  and  belief.  And  what 
may  or  may  not  be  read,  as  the  context  of  the  admission,  depends 
not  upon  the  grammatical  structure,  but  upon  the  sense  and 
connection  in  fact.  But.  whether  the  party,  against  whom  the 
answer  is  read,  is  entitled  to  have  such  parts  of  it  as  are  not 
expressly  sworn  to  left  to  the  jury  as  evidence,  however  slight,  of 
any  fact,  does  not  yet  appear  to  have  been  expressly  decided.^ 

§  203.  It  is  further  to  be  observed  on  this  head,  that  the  parol 
admission  of  a  party,  made  en  pais,  is  competent  evidence  only  of 
those  facts  which  may  lawfully  be  established  by  parol  evidence  ;  it 
cannot  be  received  either  to  contradict  documentary  proof,  or  to 
supply  the  place  of  existing  evidence  by  matter  of  record.  Thus, 
a  written  receipt  of  money  from  one  as  the  agent  of  a  corporation, 
or  even  an  express  admission  of  indebtment  to  the  corporation 
itself,  is  not  competent  proof  of  the  legal  authority  and  capacity  of 
the  corporation  to  act  as  such.^    Nor  is  a  pai-ol  admission  of  having 

the  latter  might  read  his  answer  to  the  practice,  that  where  the  party  admits  let- 
plaintiff's  last  letter,  dated  the  day  pre-  ters  to  he  in  his  handwriting,  in  order  to 
vioiis.  Roe  V.  Day,  7  C.  &  P.  705.  And  save  the  expense  of  proof  at  the  trial, 
where  one  party  produces  the  letter  of  this  will  preclude  all  objection  to  the  au- 
another,  purporting  to  be  in  reply  to  a.  thenticity  of  any  portion  of  such  letters, 
previous  letter  from  himself,  he  is  bound  although  obviously  in  a  different  hand- 
to  call  for  and  put  in  the  letter  to  which  it  writing.  Hawk  v.  Freund,  1  F.  &  F.  294. 
was  an  answer,  as  part  of  his  own  evi-  ^  Roe  v.  Ferras,  2  Bos.  &  Pul.  548. 
dence.  Watson  v.  Moore,  1  C.  &  Kir.  -  2  Bos.  &  Pul.  548,  note ;  Gresley  on 
626  ;  [Reynolds  v.  Manning,  15  Md.  510.]  Evid.  13. 
[*It  seems  to  be  settled,  in  the  English  ^  Welland  Canal  Co.  v.  Hathaway,  8 


232  „  LAW   OF   EVIDENCE.  [PART   II. 

been  discharged  imder  an  insolvent  act  sufficient  proof  of  that 
fact,  without  the  production  of  the  record.^  The  reasons  on  which 
this  rule  is  founded  having  been  ah-cady  stated,  it  is  unnecessary 
to  consider  them  further  in  this  place.^  The  rule,  however,  does 
not  go  to  the  utter  exclusion  of  parol  admissions  of  this  nature,  but 
only  to  their  effect ;  for  in  general,  as  was  observed  by  Mr.  Justice 
Parke,^  what  a  party  says  is  evidence  against  himself,  whether  it 
relate  to  the  contents  of  a  written  instrument,  or'any  thing  else. 
Therefore,  in  replevin  of  goods  distrained,  the  admissions  of  the 
plaintiff  have  been  received,  to  show  the  terms  upon  wliicli  he  held 
the  promises,  though  he  held  under  an  agreement  in  writing,  which 
was  not  produced.*  Nor  does  the  rule  affect  the  admissibility  of 
such  evidence  as  seconddtry  proof,  after  showing  the  loss  of  the 
instrument  in  question. 

§  204.  With  regard,  then,  to  the  conclusiveness  of  admissions,  it 
is  first  to  be  considered,  that  the  genius  and  policy  of  the  law 
favor  the  investigation  of  truth  by  all  expedient  and  convenient 
methods ;  and  that  the  doctrine  of  estoppels,  by  which  further 
investigation  is  precluded,  being  an  exception  to  the  general  rule, 
founded  on  convenience,  and  for  the  prevention  of  fraud,  is  not  to 
be  extended  beyond  the  reasons  on  which  it  is  founded.^  It  is  also 
to  be  observed,  that  estoppels  bind  only  parties  and  privies,  and 
not  strangers.  Hence  it  follows,  that  though  a  stranger  may  often 
show  matters  in  evidence,  which  parties  or  privies  might  have 
specially  pleaded  by  way  of  estoppel,  yet,  in  his  case,  it  is  only 
matter  of  evidence,  to  l)e  considered  by  the  jury.^     It  is,  however, 

Wend.  480  ;  National  Bank  of  St.  Charles  the  judgment  of  the  court,  in  Heane  v.  ■. 
V.  Do  Bernale-s,  1  C-  &  T.  56'J;  Jenner  v.  Roirers,  t)  B.  &  C.  577,  586.     It  was  an 
Joliffe,  (5  Jolins.  9.  action   of   trover,   brought   by  a  person, 
^  Scott  V.  Clare,  3  Campb.  23G  ;  Sum-  against  wliom  a  commission  of  bankruptcy 
mcrsett    v.    Adamson,    1    Bing.    73,   per  had  issued,  against  his  assignees,  to  re- 
Parke,  J.  cover  the  value  of  goods,  whicli,  as  assigii- 
^  See  .iitpra,  §§  96,  97.  ecs,  they  had  sold ;  and  it  appeared  tliat 
2  In  Earle  u.  Picken,  5  C.  &  P.  542 ;  he  had  assisted  the  assignees,  by  giving   : 
Newhall    v.   Holt,    Id.    662;    Slatterie   v.  directions  as  to  the  sale  of  the  goods  ;  and   j 
Pooley,  6  M.  &  W.  664  ;  Pritcliard  v.  Bag-  that,  after  the  issuing  of  the  commission, 
shawe,  11  Common  Bench  R.  459.    [Oral  he  gave  notice  to  the  lessors  of  a  farm 
statements  and  admissions  are  admissible  wliicii  he  held,  that  he  had  become  bank- 
in    evidence    against    the    party    making  rupt,  and  was  willing  to  give  up  the  lease, 
them,    though    they    involve    what    must  which  the  lessors  thereupon  arcei)ted,  and    ■ 
necessarily  be  contained  in  some  writing,  took  ])ossession  of  the  premises.     And  the    i 
deed,   or    record.      Smith    v.   Palmer,   6  question  was,  whether  he  was  precluded,    • 
Cash.  513,  520.)  by    this    surrender,   from    dis])uting    the 
*  Howard  i\  Smith,  3  Scott,  N.  R.  574.  commission  in  the  present  suit.     On  tliis 
^  See  sii/>m,  §  22-26.  point  the  language  of  the  learned  Judge 
*"  This  subject  was  very  clearly  illus-  was  as  follows  :  "  There  is  no  doul)t  but 
trated  by  Mr.  Justice  Bayley,  in  delivering  that  the  express  admissions  of  a  i)arty  to 


CHAP.  XI.] 


OF   ADMISSIONS. 


233 


in  such  cases,  material  to  consider,  whether  the  admission  is  made 
independently,  and  because  it  is  true,  or  is  merely  conventional, 
entered  into  between  the  parties  from  other  causes  than  a  con- 
viction of  its  truth,  and  only  as  a  convenient  assumption  for  the 
particular  purpose  in  hand.  For  in  the  latter  case,  it  may  be 
doubtful  whether  a  stranger  can  give  it  in  evidence  at  all.^  Ycr- 
bal  admissions,  as  such,  do  not  seem  capable,  in  general,  of  being 
pleaded  as  estoppels  even  between  parties  or  privies  ;  but  if,  being 


,  the  suit,  or  admissions  implied  from  his 
I  conduct,  are  evidence,  and  strons?  evi- 
I  dence,  against  him  ;  but  we  tliink  that  he 
I  is  at  Hberty  to  prove  that  such  admissions 
were  mistaken,  or  wore  untrue,  and  is  not 
estopped  or  conchided  by  them,  unless 
another  person  has  been  induced  by  them 
to  alter  his  condition ;  in  such  a  case,  the 
party  is  estopped  from  disputing  their 
truth  with  respect  to  that  person  (and 
those  claiming  under  him),  and  that  trans- 
action ;  but  as  to  third  persons,  lie  is  not 
bound,  it  is  a  well-estabhshed  rule  of 
law,  that  estoppels  bind  parties  and  priv- 
ies, not  strangers.  (Co.  Lit.  .3.52a;  Com. 
Dig.  Estoppel,  C.)  The  otfer  of  surrender 
made  in  this  case  was  to  a  stranger  to  this 
suit ;  and  though  the  bankrupt  may  have 
been  bound  by  his  representation  that  he 
was  a  bankrupt,  and  his  acting  as  sucli,  as 
between  him  and  tliat  stranger,  to  whom 
that  representation  was  made,  and  who 
acted  upon  it,  lie  is  not  bound  as  between 
him  and  the  defendant,  who  did  not  act 
'  on  the  faith  of  that  representation  at  all. 
The  bankrupt  would,  probably,  not  have 
been  permitted,  as  against  his  landlords, 
—  whom  lie  had  induced  to  accept  the 
lease,  without  a  formal  surrender  in  writ- 
:  ing,  and  to  take  possession,  upon  the  sup- 
position tliat  he  was  a  bankrupt,  and 
entitlecf  under  6  Geo.  IV.,  c.  16,  §  75,  to 
give  it  up,  —  to  say  afterwards  that  he 
was  not  a  bankrupt,  and  bring  an  action 
of  trover  for  the  lease,  or  an  ejectment  for 
the  estate.  To  that  extent  lie  would  have 
been  bound,  probably  no  further,  and  cer- 
tainly not  as  to  any  other  persons  tlian 
those  landlords.  This  appears  to  us  to 
be  the  rule  of  law,  and  we  are  of  opinion 
that  the  bankrupt  was  not  by  law,  by  his 
notice  and  oiler  to  surrender,  estopped ; 
and  indeed  it  would  be  a  great  hardship  if 
he  were  precluded  b\'  such  an  act.  _  It  J§ 
admitted  that  his  surrender  to  his  conimis-. 
sioners  is  no  estopjicl,  lnH'ause  it  would  be 
very  perilous  to  a  bankrupt  to  dispute  it, 
and  try  its  validity  by  refusing  to  do  so. 
(See  Flower  v.  Herbert,  2  Ves.  326.)  A 
similar  observation,   though   not  to    the 


same  extent,  applies  to  this  act;  for 
whilst  his  commission  disables  him  from 
carrying  on  his  business,  and  deprives 
him,  for  the  present,  of  the  means  of  oc- 
cupying liis  form  with  advantage,  it  would 
be  a  great  loss  to  the  bankrupt  to  continue 
to  do  so ;  paying  a  rent  and  remaining 
liable  to  the  covenants  of  the  lease,  and 
deriving  no  adequate  benefit ;  and  it  can- 
not be  expected  that  he  should  incur  such 
a  loss,  in  order  to  be  enabled  to  dispute 
his  commission  witli  effect.  It  is  reason- 
able tliat  he  should  do  the  best  for  him- 
self, in  the  unfortunate  situation  in  which 
he  is  placed.  It  is  not  necessary  to  refer 
particularly  to  the  cases  in  which  a  bank- 
rupt has  been  precluded  from  disputing 
his  commission,  and  which  were  cited  in 
argument.  Tlie  earlier  cases  fall  within 
the  principle  above  laid  down.  In  Clark 
V.  Clark,  6  Esp.  61,  the  bankrupt  was  not 
permitted  to  call  that  sale  a  conversion, 
which  lie  himself  had  procured  and  sanc- 
tioned ;  in  Like  v.  Howe,  6  Esp.  20,  he  was 
precluded  from  contesting  the  title  of  per- 
sons to  be  assignees,  whom  he  by  his  con- 
duct had  procured  to  become  so  ;  and  the 
last  case  on  this  subject,  Watson  v.  Wace, 

5  B.  &  C.  153,  is  distinguishable  from  the 
present,  because  Wace,  one  of  the  defend- 
ants, was  the  person  from  whose  suit  the 
plaintiff  had  been  discharged,  and  there- 
fore, perhaps,  he  might  be  estopped  with 
respect  to  that  person  by  his  conduct 
towards  him.  See  also  Welland  Canal 
Co.  r.  Hathaway,  8  Wend.  483 ;  Jennings 
V.  Whittaker,  4  Monroe,  50 ;  Grant  v. 
Jackson,  Teake's  Cas.  203 ;  Ashmore  v. 
Hardy,  7  C.  &  P.  501 ;  Carter  v.  Bennett, 
4  Flor.  Rep.  343. 

1  Phil.  &  Am.  on  Evid.  388;    1  Phil. 
Evid.  368.     In  Slaney  v.  Wade,  1  Mylne 

6  Craig,  388,  and  Fort  v.  Clark,  1  Euss. 
601,  604,  the  recitals  in  certain  deeds  were 
held  inadmissible,  in  favor  of  strangers,  as 
evidence  of  pedigree.  But  it  is  to  be 
noted  that  the  parties  to  those  deeds  were 
strangers  to  the  persons  whose  pedigree 
they  undertook  to  recite. 


? 


20* 


/ 


\\' 


234  LAW    OP    EVIDENCE.  [PART   II. 

unexplained  or  avoided  in  evidence,  the  jury  should  wholly  disre^ 
gard  them,  the'  remedy  would  He  by  setting  aside  the  verdict.  And 
when  they  are  held  conclusive,  they  are  rendered  effectually  so 
by  not  permitting  the  party  to  give  any  evidence  against  them. 
Parol  or  verbal  admissions,  which  have  been  held  conclusive 
against  the  party,  seem  for  the  most  part  to  be  those  on  the  faith 
of  which  a  court  of  justice  has  been  led  to  adopt  a  particular  course 
of  proceeding,  or  on  which  another  person  has  been  induced  to 
alter  his  condition.^  To  these  may  be  added  a  few  cases  of 
fraud  and  crime,  and  some  admissions  on  oath,  which  will  be 
considered  hereafter,  where  the  party  is  estopped  on  other 
grounds. 

I  §  205.  Judicial  admissions,  or  those  made  in  court  by  the  party's 
iattorney^,  generally  appear  either  of  record,  as  in  pleading,  or  in 
'the  solemn  admission  of  the  attorney,  made  for  the  purpose  of 
i  being  used  as  a  substitute  for  the  regular  legal  evidence  of  the  fact  at 
the  trial,  or  in  a  case  stated  for  the  opinion  of  the  court.  Both 
these  have  been  already  considered  in  the  preceding  pages.^ 
There  is  still  another  class  of  judicial  admissions,  made  by  i\\Q  pay- 
ment of  money  into  court,  upon  a  rule  granted  for  that  purpose.  Here, 
it  is  obvious,  tlie  defendant  conclusively  admits  that  he  owes  the 
amount  thus  tendered  in  payment ;  ^  that  it  is  due  for  the  cause 
mentioned  in  the  declaration ;  *  that  the  plaintiff  is  entitled  to 
claim  it  in  the  character  in  which  he  sues ;  ^  that  the  court  has 
jurisdiction  of  the  matter ;  ^  that  the  contract  described  is  rightly 
set  forth,  and  was  duly  executed  ;'  that  it  has  been  broken  in  the 
manner  and  to  the  extent  declared  ;  ^  and  if  it  was  a  case  of  goods 
sold  by  sample,  that  they  agreed  with  the  sample.^     In  other  words, 


1  Phil.  &  Am.  on  Evid.  378;  1  Phil.  "  Blackburn  v.  Scholes,  2  Campb.  341; 
Evid.  3G0.  Tlie  general  doctrine  of  estop-  Riicker  v.  Palsgrave,  1  Campb.  558;  1 
pels    is    thus    stated    by    Ld.    Denman.  Taunt.  419,  s.  c. ;    Boydeu  v.  Moore,  6 

!"  Where  one,   by  his  words  or  conduct  Mass.  8B5,  369. 

wilfully  causes  another  to  believe  the  ex-  •*  Seaton  v.  Benedict,  5  Bin?;.  28,  32 ; 

istence  of  a  certain  state  of  tilings,  and  Bennett  v.  Francis,  2  B.  &  P.  550 ;  Jones 

,  induces  him  to  act  on  that  belief,  so  as  to  v.  Hoar,  5  Pick.  285  ;  Huntington  v.  The 

,  alter  his  own  previous  position,  the  former  American  Bank,  6  Pick.  340. 

is  concliiilfd   fi'oni   averring   against  the  ^  Lipscombe  v.  Holmes,  2  Campb.  441. 

i  latter  a  diflerent  state  of  tilings  as  existing  "^  Miller  v.  Williams,  5  Esp.  19,  21. 

}  at  the  same  time."     Pickaril  v.  Sears,  6  "^  Gutteridge  v.  Smith,  2  H.  Bl.  374 ; 

,  Ad.  &  El.  4iV.),  475.     The  whole  doctrine  Israel  c.  Benjamin,  3  Campb.  40;  Middle- 

I  is  ably  discussed   by  Mr.  Smith,  and  by  ton  v.  Brewer,  Peake's  Cas.  15;  Pandall 

i  Messrs.  Hare  and  Wallace  in  their  notes  v.    Lynch,   1    Campb.    352,  357;    Cox  v. 

I  to  the  case  of  Trevivan  ?'.  Lawrence.    See  Brain,  3  Taunt.  95. 

2    Sinitii's    Leading    Cases,   pp.   430-479  »  Dyer  v.  Ashton,  1  B.  &  C.  3. 

(Am.  edit.).  ®  Leggatt  v.  Cooper,  2  Stark.  R.  103. 

2  See  sai)ra,  §  22-2G,  186. 


CHAP.  XI.]  OF   ADMISSIONS.  235 

the  payment  of  money  into  court  admits  conclusively  every  fact 
which  the  plaintiff  would  be  obliged  to  prove  in  order  to  recover 
that  moncy.^  But  it  admits  nothing  beyond  that.  If,  therefore, 
the  contract  is  illegal,  or  invalid,  the  payment  of  money  into  court 
gives  it  no  validity;  and  if  the  payment  is  general,  and  there  are 
several  counts,  or  contracts,  some  of  which  are  legal  and  others 
not,  the  court  will  apply  it  to  the  former.^  So,  if  there  are  two 
inconsistent  comits,  on  the  latter  of  which  the  money  is  paid  into 
court,  which  is  taken  out  by  the  plaintiff,  the  defendant  is  not 
entitled  to  show  this  to  the  jury,  in  order  to  negative  any  allegation 
in  the  first  count.^  The  service  of  a  summons  to  show  cause  why 
the  party  should  not  be  permitted  to  pay  a  certain  sum  into  court, 
and  a  fortiori^  the  entry  of  a  rule  or  order  for  that  purpose,  is  also 
an  admission  that  so  much  is  due.* 

§  206.  It  is  only  necessary  here  to  add,  that  where  judicial 
admissions  have  been  made  improvidently ,  and  hy  mistake,  the 
court  will,  in  its  discretion,  relieve  the  party  from  the  conse- 
quences of  his  error,  by  ordering  a  repleader,  or  by  dischar- 
ging the  case  stated,  or  the  rule,  or  agreement,  if  made  in 
court.^  Agreements  made  out  of  court,  between  attorneys,  con- 
cerning the  course  of  proceedings  in  court,  are  equally  under  its 
control,  in  effect,  by  means  of  its  coercive  power  over  the  attorney 
in  all  matters  relating  to  professional  character  and  conduct.  But, 
in  all  these  admissions,  unless  a  clear  case  of  mistake  is  made  out, 
entitling  the  party  to  relief,  he  is  held  to  the  admission ;  which  the 
court  will  proceed  to  act  upon,  not  as  truth  in  the  abstract,  but  as 


1  Dyer  v.  Ashton,  1  B.  &  C.  3 ;  Staple-  ^  Ribbans  v.  Crickett,  1  B.  &  P.  264; 

ton  V.  Nowell,  6  M.  &  W.  9 ;  Archer  v.  Hitchcock  v.  Tyson,  2  Esp.  481,  note. 

English,    2    vScott,    N.    S.    156 ;     Arclier  ^  Gould  v.  Oliver,  2  M.  &  Gr.  208,  233, 

V.  Walker,  9  Dowl.  21.     And  see  Story  v.  234  ;  INIontgomery  v.  Richardson,  5  C.  & 

Einnis,  3  Ens;.  L.  &  Eq.  R.  548  ;  Schre-jer  P.  247. 

V.  Carden,  16  Jnr.  568  ;  [Bacon  v.  Charl-  *  Williamson  v.  Henley,  6  Bing.  299. 

ton,  7  Cush.  581,  583.     And  where  the  ^  "  Nonfatetnr,  qui  errat,  nisi  jus  igno- 

declaration  contains  more  than  one  cotmt,  ravit."     Dig.  lib.  42,  tit.  2,  1.  2.    "  Si  vero 

and  a  part  only  of  tiie  sum  demanded  is  per  errorem   fuerit  facta    ipsa    confessio 

paid  into  court,  without  specification  as  to  (scil.  ab  advoCato),  clicnti  concessum  est, 

winch  of  the  counts  is  to  be  apjilied,  such  errore  probato,  usque  ad  sentetitiam  revo- 

payment  is   an    admission   only   that    the  care."       Mascard.     De    Probat.     vol.     1, 

defendant  owes   the  i)l:iintirt'  the  sum  so  Qua^st.  7.  n.  63;  Id.  n.  19,  20,  21,  22;  Id. 

paid  on  some  one,  or  several  of  the  counts,  vol.  1,  Concl.  348,  per  tot.     See  Kohn  v. 

but  it  is  not  an  admission  of  any  indebted-  Marsh,  3  Rob.  Louis.  R.  48.     Tiie  princi- 

ness  under  any  one  count,  nor  of  a  lia-  pie,  on  which  a  party  is  relieved  against 

bility  on  all  of  "them.     Hubbard  v.  Knous,  judicial   admissions   made   imi)rovidently 

7  Cush.  556,  559;  Kingham  v.  Robins,  5  and  by  mistake  is  equally  applicable  to 

Mees.  &  Welsh.  94;    Archer  v.  English,  admissions  «; /)«/s.    Accordingly,  where  a 

1  M.  &  G.  873.1  legal  liability  was  thus  admitted,  it  was 


236  LAW   OF   EVIDENCE.  [PART   II. 

a  formula  for  the  solution  of  the  particular  problem  before  it, 
namely,  the  case  in  judgment,  without  injury  to  the  general  admin- 
istration of  justice.^ 

§  207.  Admissions,  whether  of  law  or  of  fact,  which  have  been 
acted  upon  by  others,  are  conclusive  against  the  party  making  them, 
in  all  cases  between  him  and  the  person  whose  conduct  lie  has  thus 
influenced.^  It  is  of  no  importance  whether  they  were  made  in 
express  language  to  the  person  himself,  or  implied  from  the  open 
and  general  conduct  of  the  party.  For,  in  the  latter  case,  the 
implied  declaration  may  be  considered  as  addressed  to  every  one 
in  particular,  who  may  have  occasion  to  act  upon  it.  In  such 
cases  tlie  party  is  estopped,  on  grounds  of  public  policy  and  good 
faith,  from  repudiating  his  own  representations.-^  This  rule  is 
familiarly  illustrated  by  the  case  of  a  man  cohabiting  with  a  woman, 
and  treating  her  in  the  face  of  the  world  as  his  wife,  to  whom  in 
fact  he  is  not  married.  Here,  though  he  thereby  acquires  no 
nights  against  others,  yet  they  may  against  him ;  and  therefore,  if 
she  is  supplied  with  goods  during  such  cohabitation,  and  the 
reputed  husband  is  sued  for  them,  he  will  not  be  permitted  to 
disprove  or  deny  the  marriage.^  So,  if  the  lands  of  such  woman 
are  taken  in  execution  for  the  reputed  husband's  debt,  as  his  own 
freehold  in  her  right,  he  is  estopped,  by  the  relation  de  facto  of 
husband  and  wife,  from  saying  that  he  held  them  as  her  ser- 

hcld  that  tlie  jury  were  at  liberty  to  con-  &  El.  921,  n.  s.     Newton  v.  Liddiard,  Id. 

sidcr  all  the  ciroinnstances,  and  the  miS-  925 ;   [Tompkins  v.  Phillips,  12  Geo.  52. 

taken  view   under  which   it  was   made ;  But  wlien  a  party  applies  to  another  for 

that  the  party  might  show  that  the  admis-  information,  on  wliich  lie  intends  to  act, 

sion  made  by  liim  arose  from  a  mistake  as  and  wiiich  may  affect  the  interests  of  the 

to  the  law  ;  and  that  he  was  not  estopped  otiier,  he  ouglit  to  disclose  these  circura- 

hy  such  admission,  unless  the  other  party  stances,  and  if  he  does  not,  the  statements 

had  been  induced  by  it  to  alter  his  condi-  made  In'  the  otlier  will  not  be  C(mclusive 

tion.     Newton  v.  Belcher,  13  Jur.  253;  18  njHJn  him.      Hackett  v.  Callender,  32  Vt. 

Law  J.  53,  Q.  B. ;  12  Ad.  &  El.  921,  n.  s.  ;  9'J.j 

Newton  v.  Liddiard,  Id.  925;  Salomon  v.  ^  See  supra,   §§    195,    196;    Quick  v. 

Solomon,  2  Kelly,  18.  Staines,  1  B.  &  P.'2n3;  Graves  ;■.  Key,  3 

1  See  Gresley  on  Evid.  in  Equity,  p.  B.  &  Ad.  318;  Straton  v.  Hastall,  2  T.  R. 
349-358.  The  Roman  Law  was  adminis-  3lJG  ;  Wyatt  v.  Ld.  Hertford,  3  East,  147. 
tered  in  the  same  spirit.  "  Si  is,  cum  quo  ■*  Watson  v.  Threlkeld,  2  Esp.  637  ; 
Lege  Aquilia  agitur,  confessus  est  servum  Robinson  v.  Nahor,  1  Campb.  245 ;  Munro 
occidisse,  licet  non  occiderit,  si  tamen  v.  De  Chamant,  4  Campb.  215;  Ryan  v. 
occisus  sit  homo,  ex  confesso  tenetur."  Sams,  12  Ad.  &  El.  460,  n.  s.  ;  .s»/;m,  § 
Dig.  lib.  42,  tit.  2,  1.  4;  Id.  1.  6.  See  also  27.  But  where  such  representation  has 
Van  Leeuwen's  Comra.  b.  v.  ch.  21 ;  not  been  acted  ujxjn,  namely,  in  other 
Everliardi  Concil.  155,  n.  3.  "  Confessus  transactions  of  the  supposed  "husband,  or 
pro  judicato  est."     Dig.  ub.  sup.  1.  1.  wite,    they   are   competent   witnesses   for 

2  See  supra,  §  27 ;   Commercial  Bank  each  other.     Bathews  v.  Galindo,  4  Bing. 
of  Natchez  u.  Kitig,  3  Rob.  Louis.  R.  243;  610;    Wells  v.  Fletcher,  5  C.  &  P.  12; 
Kinney  v.  Farnsworth,  17  Conn.  R.  355;  Tufts  v.  Hayes,  5  New  Hamp.  452. 
Newton  v.  Belcher,  13  Jur.  253;  12  Ad. 


CHAP.  XI.]  OP   ADMISSIONS.  237 

vant.^  So,  if  a  party  lias  taken  advantage  of,  or  voluntarily  acted 
under  the  bankrupt  or  insolvent  laws,  he  shall  not  be  permitted, 
as  against  persons,  parties  to  the  same  proceedings,  to  deny  their 
regularity .2  So  also  where  one  knowingly  permits  his  name  to  be 
used  as  one  of  the  parties  in  a  tradin'g  firm,  under  such  circuni- 
stftnces  of  publicity  as  to  satisfy  a  jury  that  a  stranger  knew  it,  and 
believed  him  to  be  a  partner,  he  is  liable  to  such  stranger  in  all 
transactions  in  which  the  latter  engaged,  and  gave  credit  upon  the 
faith  of  his  being  such  partner.^  On  the  same  principle  it  is,  that, 
where  one  has  assumed  to  act  in.  an  official  or  professional  char- 
acter, it  is  conclusive  evidence  against  him  that  he  possesses  that 
character,  even  to  the  rendering  him  subject  to  the  penalties 
attached  to  it.^  So,  also,  a  tenant  who  has  paid  rent,  and  acted  as 
such,  is  not  permitted  to  set  up  a  superior  title  of  a  third  person 
against  his  lessor,  in  bar  of  an  ejectment  brought  by  him ;  for  he 
derived  the  possession  from  him  as  his  tenant,  and  shall  not  be 
received  to  repudiate  that  relation.^  But  this  rule  does  not ' 
preclude  the  tenant,  who  did  not  receive  the  possession  from 
the  adverse  party,  but  has  only  attorned  or  paid  rent  to  him, 
from  showing  that  this  was  done  by  mistake.^  This  doctrine 
is  also  applied  to  the  relation  of  bailor  and  bailee,  the  cases 
being  in  principle  the  same ;  ^  and  also  to  that  of  principle  and 

1  Divoll  V.  Leadbetter,  4  Pick.  220.  ^  wmiams  v.  Bartholomew,  1  B.  &  P. 

2  Like  V.  Howe,  (5  Esp.  20  ;  Clarke  v.  326  ;  Rogers  v.  Pitcher,  6  Taunt.  202,  208 ; 
Clarke,  Id.  61 ;  Goldie  v.  Gunston,  4  [supra,  §  25,  and  notes ;  Klliott  v.  Smith, 
Campb.  381 ;  Watson  v.  Wace,  5  B.  &  C.  23  Penn.  St.  11.  131 ;  Watson  v.  Lane, 
153,  explained  in  Ileane  v.  Rogers,  9  B.  34  Eng.  Law  &  Eq.  R.  532.] 

&  C.  587 ;    Mercer  v.  Wise,  3  Esp.  219 ;  '  Gosling  v.  Birnie,  7  Bing.  339  ;  Pliil- 

Harmer  v.  Davis,  7  Taunt.  577  ;  Flower  lips   v.   Hall,   8   Wend.   610 ;    Drown    v. 

V.  Herbert,  2  Ves.  326.  Smith,  3  N.  Harap.  299 ;  Eastman  v.  Tut- 

3  Per  Parke,  J.,  in  Dickinson  v.  Valpy,  tie,  1  Cowen,  248  ;  McNeil  v.  PhiUp,  1 
10  B.  &  C.  128,  140,  141  ;  Fox  v.  Clifton,  McCord,  R.  392;  Ilawos  v.  Watson,  2  B. 
6  Bing.  779,  794,  per  Tindal,  C.  J.  See  &  C.  540;  Stonard  v.  Dunkin,  2  Campb. 
also  Kell  v.  Nainby,  10  B.  &  C.  20;  Gui-  344;  Chapman  v.  Searle,  3  Pick.  38,  44; 
don  V.  Robson,  2  Campb.  302.  Dixon  v.  Hamond,  2  B.  &  Aid.  310 ;  Jew- 

*  See  supra,  §  195,  and  cases  cited  in  ett  v.  Torry,   11   ]\Iass.  219;    Lyman   v. 

note.  Lyman,  LI.  317  ;    Story  on   Bailments,  § 

'"  Doe  V.  Pegge,  1  T.  R.  759,  note,  per  102;  ICieran  v.  Sanders,  6  Ad.  &  El.  515. 
Ld.  Mansfield  ;  Cook  v.  Loxley,  5  T.  R.  But  where  tlie  bailor  was  but  a  trustee, 
4 ;  Hudson  v.  Sharpe,  10  East,  350,  352,  and  is  no  longer  liable  over  to  the  cestui 
353,  per  Ld.  EUenborough ;  Phijips  v.  que  trust,  a  delivery  to  the  latter  is  a  good 
Sculthorpe,  1  B.  &  A.  50,  53;  Cornish  defence  for  the  bailee  against  tlie  bailor. 
V.  Searell,  8  B.  &  C.  471,  per  Bayley,  J. ;  This  principle  is  familiarly  applied  to  tlie 
Doe  V.  Smythe,  4  M.  &  S.  347  ;  Doe  v.  case  of  goods  attached  by  the  shei'ifl',  and 
Austin,  9  Bing.  41 ;  Fleaming  i\  Gooding,  delivered  for  safe  keeping  to  a  person  who 
10  Bing.  549 ;  Jackson  v.  Reynolds,  1  delivers  them  over  to  tiie  debtor.  After 
Caines,  444;  Jackson  v.  Scissan,  3  Johns,  the  lien  of  the  sheriff  is  dissolved,  he  can 
499,  504 ;  Jackson  v.  Dobbin,  Id.  223 ;  have  no  action  against  his  bailee.  Whit- 
Jackson  V.  Smith,  7  Cowen,  717;  Jackson  tier  v.  Smith,  11  Mass.  211;  Cooper  v. 
V.  Spear,  7  Wend.  401.  See  1  Phil,  on  ISIowry,  16  Mass.  8;  Jenny  v.  Rodman, 
Evid.  107.  Id.  464.     So,  if  the  goods  did  not  belong 


238  LAW   OF   EVIDENCE.  [PART  II. 

agciit.^  Thus,  where  goods  in  the  possession  of  a  debtor  were  at- 
tached as  his  goods,  whereas  they  were  the  goods  of  another  person, 
who  received  them  of  the  sheriff,  in  bailment  for  safe  custody,  as  the 
goods  of  the  debtor,  without  giving  any  notice  of  his  own  title, 
the  debtor  then  possessing  other  goods,  which  might  have  been  at- 
tached ;  it  was  held,  that  the  bailee  was  estopped  to  set  up  his  own 
title  in  bar  of  an  action  by  the  sheriff  for  the  goods.^  The  accep- 
tance of  a  bill  of  exchange  is  also  deemed  a  conclusive  admission, 
against  the  acceptor,  of  the  genuineness  of  the  signature  of  the 
drawer,  though  not  of  the  indorsers,  and  of  the  authority  of 
the  agent,  where  it  was  drawn  by  procuration,  as  well  as  of  the 
legal  capacity  of  the  preceding  parties  to  make  the  contract. 
The  indorsement,  also,  of  a  bill  of  exchange,  or  promissory 
note,  is  a  conclusive  admission  of  the  genuineness  of  tiie  preced- 
ing signatures,  as  well  as  of  the  authority  of  the  agent,  in  cases 
of  procuration,  and  of  the  capacity  of  the  parties.  So,  the  as- 
signment of  a  replevin  bond  by  the  sheriff  is  an  admission  of  its 
due  execution  and  validity  as  a  bond.^  So,  where  land  has  been 
dedicated  to  public  use,  and  enjoyed  as  such,  and  private  rights 
have  been  acquired  with  reference  to  it,  the  original  owner  is  pre- 
cluded from  revoking  it.*  And  these  admissions  may  be  pleaded 
by  way  of  estoppel  en  pais.^ 

§  208.  It  makes  wo  differejice  in  the  operation  of  this  rule, 
whether  the  thing  admitted  was  true  or  false  ;~it  being  the  fact 
that  it  has  been  acted  upon  that  renders  it  conclusive.  Thus, 
wliere  Two  BrbTi:ers,'Tnsrructed  to  effect  insurance,  wrote  in  reply 

to  the  debtor,  and  the  bailee  has  delivered  ver,  who  induced  the  plaintiff  to  believe, 

them  to   the    true    owner.      Learned    v.  when  demanding  tlic  property,  that  it  was 

Bryant,  13  Mass.  224;  Fisher  v.  Bartlett,  in  his  possession  and  control,  is  not  there- 

8  Grcenl.  122.    Ogle  v.  xVtkinson,  5  Taunt,  by  estopped  in  law  from  proving  the  con- 

74'J,  which  seems  to  contradict  the  text,  trary.     Jackson  v.  Pixley,  9  Cash.  490, 

has  been  overruled,  as  to  this  point,  by  492.] 

Gosling  y.  Birnie,  AH/jra.     See  also  Story         '^  Scott  v.  Waithman,   3   Stark.    168; 

on  Agency,  §  217,  note.  Barnes  v.  Lucas,  lly.  &  M.  264  ;   Plumer 

1  Story  on  Agency,  §  217,  and  cases  v.  Briscoe,  12  Jur.  351 ;  11  Ad.  &  El.  46, 

there  cited.     The  agent,  however,  is  not  n.  s. 
estopped  to  set  up  the  _/(«  tertu  in  any  case  *  Cincinnati    v.    White,    6    Pet.   439; 

i  where  the  title  of  tiie  principal  was  ac-  Hobbs  v.  Lowell,  19  I'ick.  405. 

',  quired  by  fraud  ;  and  the  same  principle  '"  Story  on  Bills  of  Exchange,  §§  262, 

I  seems  to  api)lv  to  other  cases  of  bailment.  203;    Sanderson  ;'.  CoUman,  4  Scott,  N. 

I  Hardman  v.  Wilcock,  9  Bing.  382,  note.  R.  638 ;  Pitt  v.  Chappelow,  8  M.  &   W. 

^  Dewey  v.  Eield,  4  Met.  381.      See  616;    Tavlor    v.    Croker,    4    Esp.    187; 

also  Pitt  r.  Ciiappelow,  8  M.  &  W.  616;  Drayton  'v.  Dale,  2  B.  &  C.  293;    Ilaly  v. 

Sanderson  v.  Collman,  4  Scott,  N.  K.  638;  Lane,  2  Atk.  181 ;  Bass.  v.  Clive,  4  M.  & 

Ileane  v.  Kogors,  9  B.  &  0.  577  ;  Dezell  S.  13;  supra,  §§  195,  196,  197;    Weakley 

V.  Odell,  3   Hill,  215.     [But  it  hiis  been  v.  Bell,  9  Watts,  273. 
held  that  a  defendant  in  an  action  of  tro- 


CHAP.  XI.]  OF   ADMISSIONS.  239 

that  they  had  got  two  policies  effected,  which  was  false ;  in  an 
action  of  trover  against  them  by  tlie  assured  for  the  two  policies, 
Lord  Mansfield  held  them  estopped  to  deny  the  existence  of  the 
policies,  and  said  he  should  consider  tliem  as  the  actual  insurers.^ 
This  principle  has  also  been  applied  to  the  case  of  a  sheriff,  who 
falsely  returned  that  he  had  taken  bail.^ 

§  209.  On  the  other  hand,  verbal  admissions  which  have  not 
,  been  acted  upon,  and  which  the  party  may  controvert,  without  any 
breach  of  good  faith  or  evasion  of  public  justice,  though  admissible 
in  evidence,  arc  not  held  conclusive  against  him.  Of  this  sort  is 
the  admission  that  his  trade  was  a  nuisance,  by  one  indicted  for 
setting  it  up  in  anotlier  place  ;  ^  the  admission  by  the  defendant,  ' 
in  an  action  for  criminal  conversation,  that  the  female  in  question 
was  the  wife  of  the  plaintiff;^  the  omission  by  an  insolvent,  in  his 
schedule  of  debts,  of  a  particular  claim,  which  he  afterwards  ' 
sought  to  enforce  by  suit.^  In  these,  and  the  like  cases,  no  wrong 
is  done  to  the  other  party,  by  receiving  any  legal  evidence  show- 
ing that  the  admission  was  erroneous,  and  leaving  the  whole  evi- 
dence, including  the  admission,  to  be  weighed  by  the  jury. 

§  210.  In  some  other  cases,  connected  with  the  administration 
of  public  justice  and  of  government,  the  admission  is  held  con- 
clusive, on  grounds  of  public  policy.  Thus,  in  an  action  on  the 
statute  against  bribery,  it  was  held  that  a  man  who  had  given 
money  to  another  for  his  vote  should  not  be  admitted  to  say  that 
such  other  person  had  no  right  to  vote.^  So,  one- who  has  offi- 
ciously intermeddled  with  the  goods  of  another  recently  deceased, 
is,  in  favor  of  creditors,  estopped  to  deny  that  he  is  executor.*^ 

1  Ilarding  v.  Carter,  Park  on  Ins.  p.  4.  ^  jjgx  v.  Neville,  Peako's  Cas.  91. 
See  also  Salem  v.  Williams,  8  Wend.  483 ;  *  Morris  r.  Miller,  4  Burr.  2057,  fur- 
9  Wend.  147,  s.  c. ;   Chapman  v.  Searle,  ther  explained  in  2  Wils.  3y9;    1  Doug. 
3  Pick.  38,  44 ;    Hall  v.  White,  3  C.  &  P.  174 ;  and  Hull.  N.  P.  28. 
136  ;  Den  v.  Oliver,  3  Hawkes,   R.   479  ;          ^  Kichols  v.  Downes,  1  Mood.  &  R.  13 ; 
Doe  V.  Lambly,  2  Esp.  Goo ;    1  B.  &  A.  Hart  v.  Newman,  3  Catnpb.  13. 
650,   per   Lord    KUenborough ;    Price    v.          «  Combe  v.  Pitt,  3  Burr.  1586,1590; 
Harwood,  3  Campb.  108 ;  Stables  v.  Elev,  Rigg  v.  Curgenven,  2  Wils.  395. 
1  C.  &  P.  614;  Howard  v.  Tucker,  1  B.  &  '  Readc's  case,  5  Co.  33,  34;  Toller's 
Ad.  712.     If  it  is  a  case  of  innocent  mis-  Law  of  Ex'rs,  87-41.     See  also  Quick  v. 
take,  still,  if  it  has  been  acted  upon  by  Staines,  1  B.  &  P.  293.     Where  the  own- 
another,  it  is  conclusive  in  his  lavor.     As,  ers  of  a  stage-coach  took  up  more  passen- 
where  the  supjjosed  maker   of  a  forged  gers  than  were  allowed  by  statute,  and  an 
note   innocently   paid   it  to    a    bond  Jide  injury  was  laid  to  have  arisen  from  over- 
holder,   he   shall  be  estopped  to  recover  loading,   the   excess   beyond   the    statute 
back  the  money.     Salem  Bank  v.   Glou-  number  was  held  by  Lord  Ellenborough 
cester  Bank,  17  Mass.  1,  27.  to  he  conclusive  evidence  that  the  acci- 

-  Sinnnons  !'.  Bradford,  15  Mass.  82;  dent  arose   from   that  cause.      Israel  v. 

Eaton  V.  Ogier,  2  Greeul.  40.  Clark,  4  Esp.  259. 


240  LAW   OF   E\aDENCE.  [PART   II. 

Thus,  also,  where  a  sliip-owiier,  whose  ship  liaJ  been  seized  as 
forfeited  for  breach  of  the  revenue  laws,  applied  to  the  Secretary 
of  the  Treasury  for  a  remission  of  forfeiture,  on  the  ground  that 
it  was  incurred  by  the  master  ignorantly,  and  without  fraud,  and 
iupon  making  oath  to  the  application,  in  the  usual  course,  the 
ship  was  given  up ;  he  was  not  permitted  afterwards  to  gainsay 
it,  and  prove  the  misconduct  of  the  master,  in  an  action  by  the 
latter  against  the  owner,  for  his  wages,  on  the  same  voyage,  even 
by  showing  that  the  fraud  had  subsequently  come  to  his  knowl- 
edge.^ TJie,  ^icre'fajct  that  a^  admission  was  made  uiider  oath^ 
jioes  not  seem  alone  to  render  it  conclusive  against  the  party, 
bp-tit  adils  vaslly  to  tlu'  \\ii;_!i(  ol'  the  I  rstimony  ;__jhrowiiig^  upon 
him  the  burden  of  showing  ihai  it  was  a  case  of  clear  and  innocent 
■■  mi  stake.  ,  Thus,  in  a  prosecution  under  the  game  laws,  proof  of 
the  defendant's  oath,  taken  under  the  income  act,  that  the  yearly 
value  of  his  estate  was  less  than  £100,  was  held  not  quite  con- 
clusive against  him,  though  very  strong  e^'idence  of  the  fact.^ 
And  even  the  defendant's  belief  of  a  fact,  sworn  to  in  an  answer 
in  chancery,  is  admissible  at  law,  as  evidence  against  him  of  the 
fact,  though  not  conclusive.'^ 

§  211.  Admissions  in  deeds  have  already  been  considered,  in 
regard  to  parties  and  privies,*  between  whom  they  are  generally 
conclusive ;    and  when  not  technically  so,  they  are   entitled   to       . 
great  weight  from  the   solemnity  of  their  nature.      But  wlifiuiV 
offered  in  evidence,  by  a  stranger,  or,  as  it  seems,  even  by  a  partyl  \\ 
against  a  strangery  the  adverse  party  is  not  estopped,_but  mayj 

1  Freeman  v.  Walker,   6   Greenl.   68.  had  sworn  positively  to  matter  of  fact  in 

But  a  sworn  entry  at  the  custom-house  of  his  own  knowledge  ;   but  it  was  held  not 

certain  premises,  as  being  rented  by  A,  B,  conclusive   in   law   against   him,    though 

and  C,  as  partners,  for  the  sale  of  beer,  deserving  of  much  weight  with  the  jury, 

though  conclusive  in  favor  of  the  crown,  And  see  Carter  v.  Bennett,  4  i'lor.  Kep. 

is  not  conchisive  evidence  of  the  partner-  343. 

ship,  in  a  civil  suit,  in  favor  of  ii  stranger.  ^  Doe  v.   Steel,  3    Campb.    115.     An- 

Eilis  V.  Watson,  2  Stark.   K.  453.     The  swers  in  chancery  are  always  admissible 

difference  between  this  case  and  that  in  at  law  against  the  party,  but  do  not  seem 

the  text  may  be,  that  in  the  latter  the  to    be    held    strictly   conclusive,   merely 

party    gained   an   advantage   to   himself,  because  they  are  sworn  to.     See  Bull.  N. 

whicii  was  not  the  case  in  the  entry  of  V.  'Z^A],  '2>j1  ;    1  Stark.  Evid.  '284  ;    Came- 

partnership ;    it  lieing  only  incidentiil   to  ron  i\  J/iglitfoot,  "2  W.  Bl.  ll'JO;  Grant  v. 

tlie  prlnci|)al  ol)ject,  namely,  tlie  designa-  Jackson,   I'eake's    Cas.    203;    Studdy    v. 

tion  of  a  place  where  an  excisable  com-  Saunders,  2  \).  &  R.  347;   De  Whelpdale 

niodity  was  sold.  v.  Milburn,  5  Price,  485. 

'^  liex  V.  Clarke,  8  T.  R.   220.     It  is  *  Supra,  §§  22,  23,  24,  180,  204.     But 
observable,  that  tlic  matter  sworn  to  was  if  tlie  deed  has  not  been(lelivered,  tlie 
rather  a   matter   of  judgment    tlian    of  party  is  not  conclusively  bound.    Robin- 
certainty    in   fact.      But   in    Tlioriies    v.  son  v.  Cushman,  2  Denio,  14y. 
White,  1  Tyrwb.  &  Grang.  110,  the  party 


CHAP.  XI.]  OF   ADMISSIONS.  241 

;  repel  their  effect,  in  the  same  manner  as  though  they  were 
only  parol  admissions.^  [*It  is  scarcely  necessary  to  say,  that 
all  estoppels  in  deed  must  be  mutual,  i.e.,  must  bind  both  par- 
ties. Hence  recitals  in  a  deed  may  bind  a  party,  in  one  relation 
or  capacity,  and  not  in  another.^  And  writers  of  authority  affirm, 
that  "  it  is  now  clearly  settled,  that  a  party  is  not  estopped  from 
avoiding  his  deed  by  proving  that  it  was  entered  into  from  a 
fraudulent,  illegal,  or  immoral  purpose."  ^  So  the  tenant  is  so 
estopped  to  deny  the  title  of  his  landlord,  that  he  cannot  take 
advantage  of  any  formal  defect  therein,  which  appears  in  the  course 
of  the  trial  in  a  suit  for  use  and  occupation.^] 

§  212.  Other  admissions,  tliough  in  writing,  not  having  been 
acted  upon  by  another  to  his  prejudice,  nor  falling  within  the 
reasons  l)cforc  mentioned  for  estopping  the  party  to  gainsay  them, 
are  not  conclusive  against  him,  but  are  left  at  large,  to  be  weighed 
with  other  evidence  by  the  jury.  Of  this  sort  are  receipts,  or  mere 
acknowledgments,  given  for  goods  on  money,  whether  on  separate 
papers,  or  indorsed  on  deeds  or  on  negotiable  securities ;  ^  the 
adjustment  of  a  loss^  on  a  policy  of  insurance,  made  without  full 
knowledge  of  all  the  circumstances,  or  under  a  mistake  of  fact, 
or  under  any  other  invalidating  circumstances ;  ^  and  accounts 
rendered,  such  as  an  attorney's  bill,'^  and  the  like.  So,  of  a  bill 
in  chancery,  which  is  evidence  against  the  plaintiff  of  the  admis- 
sions it  contains,  though  very  feeble  evidence,  so  far  it  may  be 
taken  as  the  suo-g-estion  of  counsel.^ 


'»o^ 


1  Bowman  v.  Rostron,  2  Ad.  &  EI.  295,  receipt  of  the  purcliase-monev  in  a  deed 

n. ;    Woodward   v.   Laikin,   3   Esp.    28(5;  of  land  is  no  evidence  of  tlie  fact  against 

Mayor  of  Carlis;le  c.  Blaiuire,  8  East,  487,  a  stranger.     Lloyd  v.  Lynch,  28  Tenn.  St. 

492,  493.  419.      The  receipt  of  the   mortgagee,  it 

-  [*2  Sinitli's  Lead.  Cas.  442 ;  Taylor's  has  been  held,  is  not  evidence  of  a  pay- 

Evid.  §  82.  ment   by  the  mortgagor,  at  the   dale   of 

^  Taylor's  Evid.  §  80.  the  receipt  as  against  tbe  assignee  of  tiie 

■*  ])oll)y  V.  lies,  11  Ad.  &  El.  835.]  mortgage  whose  title  dates  snbsequent  to 

^  Skaitie  v.  Jackson,  3   B.    &  C.  421 ;  tlie  date  of  the  recei})t.     Poster  v.  Beals, 

Graves  v.  Key,  3  B.  &  A.  313;  Straton  v.  21  N.  Y.    Ct.  of  App.  247  (three  judges 

Rastall,  2  T.  \l.  3G6  ;  Fairmaner  v.  Budd,  dissenting).] 

7  Bing.  574 ;  Lamjion  v.  Corke,  5  B.  &  "  Rayner  v.  Hall,  7  Tannt.  725 ;  Sliep- 
Ald.  tiOG,  611,  per  ILohoyd,  J. ;  Harden  v.  herd  v.  Ciiewter,  1  Campb.  274,  27t),  noie 
Gordon,  2  Mason,  541,  oijl  ;  Fuller  v.  by  the  reporter ;  Adams  r.  Sanders,  1  M. 
Crittenden,  9  Conn  401 ;  Ensign  v.  Web-  &  M.'  373 ;  Christian  r.  Coombe,  2  Esp. 
ster,  1  Johns.  Ca^s.  145 ;  Putnam  r.  Lewis,  469 ;  Bilbie  v.  Lumley,  2  East,  469 ;   El- 

8  Johns.   389;    Stackpole   i\   Arnold,    11  ting  2-.  Scott,  2  Johns.  157. 

]\Iass.  27;    Tucker  r.  Maxwell,  Id.   143;  '  Lovebridge  r.  Botham,  1  B.  &  P.  49. 

Wilkinson  v.  Scott,  17  Mass.  249;    [infra,  ^  Bull.  N.  P.  235;    Doe  v.  Sybourn,  7 

§  305.]      I*  The  acknowledgment  of"  the  T.  E.  3.     See  vol.  3,  §  276. 

VOL.  I.  21 


242  LAW   OF   EVIDENCE.  [PART   II. 


CHAPTER    XII. 

OF   CONFESSIONS. 

[•*§  213.  Confessions  are  direct,  and  indirect,  or  implied. 

214.  Grounds  of  caution  in  regard  to  such  evidence  in  criminal  cases. 

215.  Under  what  circumstances  confessions  are  received. 

216.  Confessions  are  judicial  and  extra-judicial. 

217.  Naked  confessions  insuificient,  without  proof  of  corpus  delicti. 

218.  All  taken  together.     Jury  not  bound  to  give  equal  credit  to  all. 

219.  Must  be  voluntary ;  i.e.,  not  obtained  tlirough  hope  or  fear. 

220.  IIow  far  promises  or  threats  will  exclude  confessions. 

220«.  Tlie  author  thinks  the  inducements  should  be  such  as  render  the  confes- 
sions imworthy  of  credit,  to  exclude  them. 
'    221.  If  the  influence  of  inducements  offered  be  removed,  confession  evidence. 
222.  Inducements  by  those  in  authority  will  exclude  confession. 
228.  By  those  not  in  such  position,  may  or  not,  according  to  circumstances. 

224.  Examinations  of  prisoners  under  the  English  Statute. 

225.  JMust  be  entirely  free,  and  not  upon  oath,  to  become  evidence. 

226.  If  under  any  constraint,  his  statements  not  evidence. 

227.  The  written  examination  taken  down  by  the  magistrate,  within  its  scope, 

excludes  other  proof. 

228.  If  examination  be  rejected  for  informality,  other  proof  admissible. 

229.  Many  circumstances  enumerated,  which  will  not  avoid  tlie  effect  of  a  con- 

fession. 
2o0.  It  seems  doubtful  how  far  illegal  restraint  will  liave  that  effect. 

231.  Information  improperly  obtained  may  lead  to  the  discovery  of  facts  which 

are  admissible. 

232.  But  if  no  such  facts  are  discovered,  nothing  can  be  proved  in  regard  to  the 

search. 

233.  The  acts,  but  not  the  confessions,  of  co-conspirators  admissible. 

234.  One  may  be  affected,  criminally,  by  the  act  of  his  agent. 

235.  Confessions  admissible  in  cases  of  treason.] 

§  213.  The  only  remaining  topic,  under  the  general  head  of 
admissions,  is  that  of  confessions  of  guilt  in  criminal  prosecutions, 
which  we  now  propose  to  consider.  It  has  already  been  observed, 
that  the  rules  of  evidence,  in  regard  to  the  voluntary  admissions 
of  the  party,  are  the  same  in  criminal  as  in  civil  cases.  But,  as 
this  applies  only  to  admissions  brought  home  to  the  party,  it  is 
obvious  that  the  whole  subject  of  admissions  made  by  agents  and 
third  persons,  together  with  a  portion  of  that  of  implied  admis- 


CHAP.  XII.] 


OF   CONFESSIONS. 


243 


sions,  can  of  course  have  very  little  direct  application  to  confes- 
sions of  crime,  or  of  guilty  intention.  In  treating  this  subject, 
however,  we  shall  follow  the  convenient  course  pursued  by  other 
writers,  distributing  this  branch  of  evidence  into  two  classes  ; 
namely,  ^rs^,  the  direct  confessions  of  guilt ;  and,  secondly,  the  indi- 
rect confessions,  or  those  which,  in  civil  cases,  are  usually  termed 
"  implied  admissions."  ^ 

§  214.  But  here,  also,  as  we  have  before  remarked  in  regard 
to  admissions,^  the  evidence  of  verbal  confessions  of  guilt  is  to  be 
received  with  great  cauiioyi.  For,  besides  the  danger  of  mistake, 
from  the  misapprehension  of  witnesses,  the  misuse  of  words,  the 
failure  of  the  party  to  express  his  own  meaning,  and  the  infirmity 
of  memory,  it  should  be  recollected  that  the  mind  of  the  prisoner 
himself  is  oppressed  by  the  calamity  of  his  situation,  and  that  he 
is  often  influenced  by  motives  of  hope  or  fear  to  make  an  untrue 
confession.^    The  zeal,  too,  which  so  generally  prevails,  to  detect 


1  Supra,  §  200. 

2  Hawk.  P.  C,  B.  2,  ch.  46,  §  3,  n.  (2) ; 
McNally's  Evid.  42,  43,  44 ;  Vaughan  v. 
Hann,  G  B.  jMonr.  341 ;  [Brister  v.  State, 
20  Ala.  107.]  Of  this  character  was  the 
remarkable  case  of  the  two  Boorns,  con- 
victed in  the  Supreme  Court  of  Vermont, 
in  Bennington  Count}^  in  September  term, 
18ly,  of  the  murder  of  Bussell  Colvin, 
May  10,  1812.  It  appeared  that  Colvin, 
who  was  the  brother-in-law  of  the  prison- 
ers, was  a  person  of  a  weak  and  not  per- 
pectly  sound  mind  ;  that  he  was  considered 
burdensome  to  the  family  of  the  prisoners, 
wlu)  were  obliged  to  support  him  ;  that  on 
the  day  of  his  disappearance,  being  in  a 
distant  field,  where  the  prisoners  were  at 
work,  a  violent  (j[uarrel  broke  out  between 
tliem  ;  and  that  one  of  them  struck  him  a 
severe  blow  on  the  back  of  the  head  with 
a  club,  which  felled  him  to  the  ground. 
Some  suspicions  arose  at  that  time  that  he 
was  murdered  ;  which  were  increased  by 
the  finding  of  his  hat  in  the  same  field  a 
few  months  afterwards.  These  suspicions 
in  process  of  time  subsided ;  but  in  181'.), 
one  of  the  neighbors  having  repeatedly 
dreamed  of  the  murder,  with  great  mi- 
nuteness of  circumstance,  both  in  regard 
to  his  death  and  the  concealment  of  his 
remains,  the  prisoners  were  vehemently 
accused,  and  generally  believed  guilty  of 
the  murder.  Under  strict  search,  the 
pocket  knife  of  Colvin,  and  a  button  of  his 
clothes,  were  fountl  in  an  old  open  cellar 
in  the  same  field,  and  in  a  hollow  stump, 
not  many  rods  from  it,  wcie  discovered 
two  nails  and  a  imniber  of  bones,  believed 


to  be  those  of  a  man.  Upon  this  evidence, 
together  with  their  deliberate  confession 
of  the  fact  of  the  murder  and  conceal- 
ment of  the  body  in  those  places,  they 
were  convicted  and  sentenced  to  die.  On 
the  same  day  they  applied  to  the  legisla- 
ture for  a  commutation  of  the  sentence  of 
death  to  that  of  perpetual  imprisonment ; 
which,  as  to  one  of  tliem  only,  was  grant- 
ed. The  confession  being  now  withdrawn 
and  contradicted,  and  a  reward  ottered  for 
the  discovery  of  the  missing  man,  he  was 
found  in  New  Jersey,  and  returned  home, 
in  time  to  prevent  the  execution.  He  had 
fled  for  tear  that  they  would  kill  him. 
The  bones  were  those  of  some  animal. 
They  had  been  advised  by  some  misjudg- 
ing friends,  that,  as  they  would  certainlj- 
be  convicted,  upon  the  circumstances 
proved,  their  only  chance  for  life  was  by 
commutation  of  punishment,  and  that  this 
depended  on  their  making  a  jjenitential 
conlession,  and  thereupon  obtaining  a  rec- 
ommendation to  mercy.  This  case,  of 
which  there  is  a  report  in  the  Law  Library 
of  Harvard  University,  is  critically  exam- 
ined in  a  learned  and  elaborate  article 
in  the  North  American  Keview,  vol.  10, 
pp.  418-42'.).  [*  Within  the  last  few  years 
we  had  opportunity  to  examine,  at  length, 
the  original  minutes  of  the  testimony  in 
this  remarkable  case,  taken  by  Chief  Jus- 
tice Chase,  who  presided  at  the  trial,  and 
we  have  these  minutes  still  in  our  posses- 
sion. We  have  been  absolutely  amazed 
at  the  character  of  the  evidence  upon 
which  the  conviction  was  had.  It  did  not 
seem  to  us  sufficient  to  put  the  prisoners 


244 


LAW    OF    EVIDENCE. 


[part  H. 


ofFeiulers,  especially  in  cases  of  aggravated  guilt,  and  the  strong 
dis]iositiou,  in  the  persons  engaged  in  pursuit  of  evidence,  to  rely 
on  slight  grounds  of  suspicion,  which  are  exaggerated  into  suffi- 
cient proof,  together  with  the  character  of  the  persons  necessarily 
called  as  witnesses,  in  cases  of  secret  and  atrocious  crime,  all 
tend  to  im})air  the  value  of  this  kind  of  evidence,  and  sometimes 
lead  to  its  reje(;tion,  where,  in  civil  actions,  it  would  have  been 
received.^  The  weighty  observation  of  Mr.  Justice  Foster  is  also 
to  be  kept  in  mind,  that  "this  evidence  is  not,  in  the  ordinary 
course  of  things,  to  be  disproved  by  that  sort  of  negative 
evidence,  by  which  the  proof  of  plain  facts  may  be,  and  often  is, 
confronted." 

§  215.  Subject  to   these   cautions   in   receiving   and  weighing 
them,  it  is  generally  agreed,  that  deliberate  confessions  of  guilt  are 


upon  tlic'ir  defence.  Our  impression  is, 
from  ri'coik'ction,  vvithont  relerring  to  the 
minutes,  that  the  eontession  of  the  prison- 
ers was  made  subsequent  to  the  convic- 
tion, and  with  a  view  to  influence  the 
legislature  to  conmmte  tlie  sentence.  But 
wlienever  made,  it  was  confessedly  in 
answer  to  urgent  solicitations,  and  positive 
assurances  that  it  would  alone  procure 
favorable  action  upon  the  case,  with  the 
view  of  saving  the  lives  of  the  accused, 
and  was  not  therefore  competent  evidence 
against  them.  Hut  tiiere  was  no  doubt  a 
full  confession  of  guilt  made,  when  in  tact 
the  i)risoners  were  innocent  of  the  actual 
crime,  wiiich  shows  how  cautiously  such 
confessions  should  be  receiveil  and 
weighed.]  For  other  ca,ses  of  tiilse  con- 
fessions, see  Wills  on  Circumstantial  Evi- 
dence, ]).  88;  I'liil.  &  Am.  on  Evid.  41',); 
1  I'hil.  EviiL  8'J7,  n. ;  Warickshall's  case, 
1  Leach,  Cr.  Cas.  -i'JU,  n.  Mr.  Chitty 
mentions  the  case  of  an  innocent  person 
making  a  false  constructive  confession,  in 
order  to  fix  suspicion  on  himself  alone, 
that  his  guilty  l)rothers  might  have  time 
to  escape;  a  stratagem  which  was  com- 
pletely successful;  after  which  he  [)roved 
an  '////;/  in  tlie  most  satisfactory  maimer. 
1  Chitty's  Crim.  Law,  p.  85 ;  1  Dickins, 
.Just.  G2'.),  note.  See  also  Joy  on  Con- 
fessions, &c.  J)]).  100-10',).  The  civilians 
j)laceil  little  reliance  on  naked  confes- 
sions of  guilt,  not  corroborated  by  other 
testimony.  t'ari)zovius,  after  citing  the 
opinions  of  Severus  to  that  effect,  and 
eiuimerating  the  various  kinds  of  misery 
which  temi)t  its  wretched  victims  to  this 
mode  of  suicide,  adds  :  "(inorum  omnium 
e.x  his  fontibiis  contra  se  emissa  pronim- 
ciatio,  non  tam  delicti  confessione  tirmati 


quam  vox  doloris,  vel  insuDiciitis  oratio 
est."  B.  Carpzov.  Pract.  Rerum.  Crimi- 
nal. Pars.  III.  Qiuest.  114,  p.  160.  The 
just  value  of  these  instances  of  false  con- 
fessions of  crime  has  been  happily  stated 
by  one  of  the  most  accomiilished  of  mod- 
ern jurists,  and  is  best  expressed  in  his 
own  language  :  "  Whilst  such  anomalous 
cases  ought  to  render  courts  and  jiu-ies, 
at  all  times,  extremely  watchful  of  every 
fact  attendant  on  confessions  of  guilt,  the 
cases  should  never  be  invoked,  or  so  urged 
by  tlie  accused's  counsel,  as  to  invalidate 
indiscriminately  all  confessions  put  to  the 
jury,  thus  repudiating  those  salutary  dis- 
tinctions which  the  court,  in  the  judicious 
e.xercise  of  its  duty,  shall  be  enabled  to 
make.  Such  an  use  of  these  anomalies, 
which  should  be  regariled  as  mere  excep- 
tions, and  which  should  speak  only  in 
tiie  voice  of  warning,  is  no  less  uiii)n>tes- 
sional  than  impolitic  ;  and  should  be  re- 
garded as  offensive  to  the  intelligence  both 
of  the  court  and  jury."  "  Confessions  and 
circumstantial  evidence  are  entitled  to  a 
known  aud  fixed  standing  in  the  law  ;  and 
while  it  behooves  students  and  lawyers  to 
examine  and  carefully  weigh  their  just 
force,  and,  as  far  as  practicable,  to  deline 
their  proper  limits,  the  advocate  slicmld 
never  be  induced,  by  professional  zeal  or 
a  less  worthy  motive,  to  argue  against 
their  existence,  be  they  respectively  in- 
voked, either  in  favor  of,  or  against  the 
accused,"  Iloflinan's  Course  of  J^'gal 
Study,  vol.  1.  pj).  o67,  368.  See  also  The 
(London)  Law  Magazine,  vol.  4,  p.  317, 
is'ew  Series. 

1  Foster's  Disc.  p.  243.  See  also  Lench 
V.  Lench,  10  Yes.  518;  Smith  v.  Burn- 
ham,  3  Sumn.  438. 


CHAP.  XII.]  OF   CONFESSIONS.  245 

among  the  most  effectual  proofs  in  the  law.^  Their  value  depends 
on  the  supposition,  that  they  are  deliberate  and  voluntary,  and  on 
the  presunij)tion  that  a  rational  being  will  not  make  admissions 
prejudicial  to  his  interest  and  safety,  unless  when  urged  by  the 
promptings  of  truth  and  conscience.  Such  confessions,  so  made 
by  a  prisoner,  to  any  person,  at  any  moment  of  time,  and  at  any 
place,  subsequent  to  the  perpetration  of  the  crime,  and  previous 
to  his  examination  before  the  magistrate,  are  at  common  law 
received  in  evidence,  as  among  proofs  of  guilt.^  Confessions,  too, 
like  admissions,  may  be  inferred  from  the  conduct  of  the  prisoner, 
and  from  his  silent  acquiescence  in  the  statements  of  others, 
respecting  himself,  and  made  in  his  presence ;  provided  they  were 
not  made  under  circumstances  which  prevented  him  from  replying 
to  them.^  The  degree  of  credit  due  to  mem  is  to  be  estimated  by 
the  jury,  under  the  circumstances  of  each  case.^J  Confessions 
made  before  the  examining  magistrate,  or  during  imprisonment, 
are  affected  by  additional  considerations. 

§  216.  Confessions  are  divided  into  two  classes,  namely,  judi- 
cial and  extrajudicial.  Judicial  coyifessions  are  those  which  are 
made  before  the  magistrate,  or  in  court,  in  the  due  course  of  legal 
proceedings  ;  and  it  is  essential  that  they  be  made  of  the  free  will 
of  the  party,  and  with  full  and  perfect  knowledge  of  the  nature 
and  consequences  of  the  confession.  Of  this  kind  are  the  pre- 
liminary examinations,  taken  in  writing  by  the  magistrate,  pursu- 
ant to  statutes  ;  and  the  plea  of  "  guilty  "  made  in  open  court,  to 
an  indictment.  Either  of  these  is  sufficient  to  found  a  conviction, 
even  if  to  be  followed  by  sentence  of  death,  tliey  being  deliberately 
made,  under  the  deepest  solemnities,  with  the  advice  of  counsel, 
and  the  protecting  caution  and  oversight  of  the  judge.  Such  was 
the  rule  of  the  Roman  law  ;  "  Confessos  in  jure,  -pro  judicatis 
haberi  ])lacet ;  "  and  it  may  be  deemed  a  rule  of  universal  jurispru- 
dence.^    Extrajudicial  confessions  are  those  which  are  made  by  the 

1  Dig.  lib.  42,  tit.  2,  De  Confess. ;  Van  &  P.  832 ;  Rex  v.  Smithie,  5  C.  &  P.  332 ; 
Leeuwen's  Comm.  b.  5,  ch.  21,  §  1;  2  Hex  c.  Appleby,  3  Stark.  K.  33;  Joy  on 
Potli.  on  Obi.  (by  Evans,)  App.  Xiun.  xvi.  Confessiuns,  &c., .77-80;  Jones  v.  Morrell, 
§  13;  1  Gilb.  Evid.  bv  Lofft,  216  ;  Hawk,  1  Car.  &  Kir.  266. 

P.  C,  b.  2,  ch.  46,  §  3,  n.  (1) ;  Mortimer  *  Suimi,  §  201 ;  Coon  v.  The  State,  13 

r.  Mortimer,  2  Hac;ar.  Con.  R.  315;  Harris  Sm.  &.  M.  246  ;  MoCaun  v.  The  State,  Id. 

V.  Harris,  2  Hagg.^Eccl.  K.  409.  471. 

2  Larabe's  case,  2  Leach,  Cr.  Cas.  625,  ^  Cod.  lib.  7,  tit.  59 ;  1  Poth.  on  Obi. 
629,  per  Grose,  J. ;  Warickshall's  case,  Part  4,  ch.  3,  §  1,  numb.  798;  Van  Leeu- 
1  Leach,  Cr.  Cas.  298;  McNally's  Evid.  wen's  Comm.  b.  5,  ch.  21,  §  2;  Mascard. 
42,  47.  De    Probat.    vol.    1,  Concl.    344 ;    supra, 

3  Supra,  §  197 ;  Eex  v.  Bartlott,  7  C.  §  179. 

21* 


24G 


LAW    OF    EVIDENCE. 


[part  II. 


party  elsewhere  than  before  a  magistrate,  or  in  court ;  this  term 
embracing  nut  only  explicit  and  express  confessions  of  crime,  but 
all  those  admissions  of  the  accused,  from  which  guilt  may  be 
impVied.  All  confessions  of  this  kind  are  receivable  in  evidence, 
being  proved  like  other  facts,  to  be  weighed  by  the  jury. 

§  217,  Whether  extrajudicial  confessions  uncorroborated  by  any 
other  proof  of  the  corpus  delicti,  are  of  themselves  sufficient  to 
found  a  conviction  of  the  prisoner,  has  been  gravely  doubted.  In 
the  Roman  law,  such  naked  confessions  amounted  only  to  a  semi- 
plena  prohatio,  upon  which  alone  no  judgment  could  bc  founded  ; 
and  at  most  the  party  could  only  in  proper  cases  be  put  to  the 
torture.  But  if  voluntarily  made,  in  the  presence  of  the  injured 
party,  or,  if  reiterated  at  different  times  in  his  absence,  and  per- 
sisted in,  they  were  received  as  plenary  proof.^  In  each  of  the 
English  cases  usually  cited  in  favor  of  the  sufficiency  of  this  evi- 
dence, there  was  some  corroborating  circumstance. ^  In  the  United 
States,  the  prisoner's  confession,  when  the  corpus  delicti  is  not 
otherwise  proved,  has  been  held  insufficient  for  his  conviction ; 
and  this  opinion  certainly  best  accords  with  the  humanity  of  the 
criminal  code,  and  with  the  great  degree  of  caution  apjjlied  in 
rcceivin"-  and  weighing  the  evidence  of  confessions  in  other  cases ; ' 


1  N.  Everhard.  Concil.  xix.  8,  Ixxii.  5, 
cxxxi.  1,  clxv.  1,  2,  3,  clxxxvi.  2,  3,  11 ; 
Milscard.  l)e  Probat,  vol.  1,  Concl.  347, 
349;  Van  I.eeuwen's  Comni.  b.  5,  ch.  21, 
§§  4,  o;  B.  Cavpzov.  Practic.  Rerum 
Criminal.  I'ars  II.  QiuKst.  n.  8. 

-  Whcelins's  case,  1  Leach,  Cr.  Cas. 
34'J,  n.,  seenis  to  be  an  exception  ;  but  it  is 
too  briefly  reported  to  be  relied  on.  It 
is  in  these  words :  "  But  in  tlie  case  of 
John  Whedinij,  tried  betbie  Lord  Kenyoii, 
at  the  Summer  Assi/es  at  Salisbury,  1789, 
it  was  (k'terniined  that  a  prisoner  may  be 
convicted  on  his  own  confession,  when 
I)roved  by  legal  testimony,  though  it  is 
totally  uncorroborated  by  any  other  evi- 
dence." But  in  Eldridge's  case,  Russ.  & 
Ry.  4 to,  who  was  indicted  for  larceny  of 
a  liorse,  the  beast  was  found  in  his  posses- 
sion, and  lie  had  sold  "it  for  .£12,  after 
asking  .£35,  which  last  was  its  fair  value. 
In  the  case  of  Falkner  and  Bond,  Id.  481, 
the  person  robbeil  was  calkd  upon  his  re- 
coqnizana;,  and  it  was  proved  that  one  of 
tlie  prisoners  had  endeavorcid  to  send  a 
message  to  him  to  keep  him  from  appear- 
ing. In  Wiiite's  case.  Id.  508,  there  was 
strong  circumstantial  evidence,  both  of  the 
larceny  of  the  oats  from  the  prosecutor's 


stable,  and  of  the  prisoner's  guilt ;  part  of 
which  evidence  was  also  given  in  Tippet's 
case,  Id.  509,  wlio  was  indicted  for  the 
same  larceny  ;  and  there  was  the  addi- 
tional proof,  that  he  was  an  under  hostler 
in  the  same  st^ible.  And  in  all  these  cases, 
except  that  of  Falkner  and  Bond,  the  con- 
fessions were  solemnly  made  before  the 
examining  magistrate,  and  taken  down  in 
due  form  of  law.  In  the  case  of  Falkner 
and  Hond,  the  confessions  were  repeated, 
once  to  tlie  ofhcer  who  apprehended  them, 
and  afterwards  on  hearing  the  depositions 
read  over,  which  contained  the  cliarge. 
In  St(me's  case.  Dyer,-  215,  pi.  50,  which 
is  a  l)rief  note,  it  does  not  appear  tliat  the 
cor/iKs  dclli-ti  was  not  otherwise  proved ; 
on  the  contrary,  tlie  natural  inference 
from  the  report  is,  that  it  was.  In  Fran- 
cia's  case,  6  State  Tr.  58,  there  was  much 
corroborative  evidence;  but  the  prisoner 
was  acquitted ;  and  the  oi)inion  of  the 
judges  went  only  to  the  sufficiency  of  a 
confession  solemnly  made,  nj)on  the  ar- 
raignment of  the  party  for  high  treason, 
and  this  only  upon  the  particular  language 
of  the  statutes  of  Edw.  VI.  See  Foster, 
Disc  pp.  240,  241,  242.  . 


CHAP.  XII.]  OF   CONFESSIONS.  247 

and  it  seems  countenanced  by  approved  writers  on  this  brancli  of 
the  lavv.i 

§  218.  In  the  proof  of  confessions,  as  in  the  case  of  admissions 
in  civil  cases,  the  ivhole  of  what  the  j^^'isoner  said  on  the  subject,  at 
the  time  of  making  the  confession,  should  be  taken  together.^ 
This  rule  is  the  dictate  of  reason,  as  well  as  of  humanity.  The 
prisoner  is  supposed  to  have  stated  a  proposition  respecting  his 
own  connection  with  the  crime ;  but  it  is  not  reasonable  to  assume 
that  the  entire  proposition,  with  all  its  limitations,  was  contained  in 
one  sentence,  or  in  any  particular  number  of  sentences,  excluding 
all  other  parts  of  the  conversation.  As  in  other  cases  the  mean- 
ing and  intent  of  the  parties  are  collected  from  the  whole  writing 
taken  together,  and  all  the  instruments,  executed  at  one  time  by 
the  parties,  and  relating  to  the  same  matter,  are  equally  resorted 
to  for  that  purpose  ;  so  here,  if  one  part  of  a  conversation  is  relied 
on,  as  proof  of  a  confession  of  the  crime,  the  prisoner  has  a  right 
to  lay  before  the  court  the  whole  of  what  was  said  in  that  conver- 
sation ;  not  being  confined  to  so  much  only  as  is  explanatory  of 
the  part  already  proved  against  him,  but  being  permitted  to  give 
evidence  of  all  that  was  said  upon  that  occasion,  relative  to  the 
subject-matter  in  issue.^  For,  as  has  been  already  observed 
respecting  admissions,*  unless  the  whole  is  received  and  consid- 
ered, the  true  meaning  and  import  of  the  part  which  is  good 
evidence  against  him  cannot  be  ascertained.  But  if,  after  the 
whole  statement  of  the  prisoner  is  given  in  evidence,  the  prose- 
cutor can  contradict  any  part  of  it,  he  is  at  liberty  to  do  so  ;  and 
then  the  whole  testimony  is  left  to  the  jury  for  their  consideration, 
precisely  as  in  other  cases,  where  one  part  of  the  evidence  is  con- 
tradictory to  another .5  For  it  is  not  to  be  supposed  that  all  the 
parts  of  a  confession  are  entitled  to  equal  credit.  The  jury  may 
believe  that  part  which  charges  the  prisoner,  and  reject  that  which 
is  in  his  favor,  if  they  see  sufficient  grounds  for  so  doing.^     If 

1  Guild's  case,  5  Halst.  163, 185 ;  Long's         ^  Per  Lord  C.  J.  Abbott,  in  tlie  Queen's 

case,  1  Hayw.  524,  (455) ;  Hawk.  P.  C.,  case,  2  B.  &  B.  2'J7,  2'J8 ;  Rex  v.  Paine,  5 

b.  2,  ch.  4G,  §  18.     [*  Brown  v.  State,  32  Mod.  165;  Hawk.  P.  C,  b.  2,  ch.  46,  §  5; 

Miss.   433.      Bergen  v.   The  People,   17  Kex  v.  Jones,  2  C.  &  P.  629  ;  Pex  v.  Hig- 

lU.  426.]  gins,  2  C.  &  P.  603 ;  Rex  v.  Heanie,  4  C. 

-  The  evidence  must  be  confined   to  &  P.  215 ;  Rex  v.  Clewes,  Id.  221 ;  Rex  v. 

his  confessions  in  regard  to  the  particular  Steptoe,  Id.  897 ;  Brown's  case,  9  Leigh, 

offence  of  which  he  is  indicted.     If  it  re-  633. 

lates  to  another  and  distinct  crime,  it  is  *  Supra,  §  201,  and  cases  there  cited, 

inadmissible.    Regiua  v.  Butler,  2  Car.  &         ''  Rex  v.  Jones,  2  C.  &  P.  62U. 
Ivir.  221.  ^  Rex  v.  Higgins,  3  C.  &  P.  603;  Rex 


248  LAW    OF   EVIDENXE.  [PART   II. 

what  he  said  in  his  own  favor  is  not  contradicted  by  evidence 
oilered  by  t]ie  prosecutor,  nor  improbable  in  itself,  it  will  naturally 
be  believed  by  the  jury  ;  but  they  are  not  bound  to  give  weight  to 
it  on  that  account,  but  are  at  liberty  to  judge  of  it  like  other  evi- 
dence, by  all  the  circumstances  of  the  case.  And  if  the  confession 
implicates  other  persons  ])y  name,  yet  it  must  be  proved  as  it  was 
made,  not  omitting  the  names  ;  but  the  judge  wil)  instruct  the 
jury  that  it  is  nyt  evidence  against  any  but  the  prisoner  who 
made  it.^     i4.-rUxM  ^^U^^«^*^^  A*^*w 

§  219.  Before  any  confession  can  be  received  in  evidence  in  a 
criminal  case,  it  must  be  shown  that  it  was  voluntary.  The  course 
of  practice  is,  to  inquire  of  the  witness  whether  the  prisoner  had 
been  told  that  it  would  be  better  for  him  to  confess,  or  worse  for 
him  if  he  did  not  confess,  or  whether  language  to  that  effect  had 
been  addressed  to  him.^  "  A  free  and  voluntary  confession,"  said 
Eyre,  C.  B.,^  "  is  deserving  of  the  highest  credit,  because  it  is  pre- 
sumed to  flow  from  the  strongest  sense  of  guilt,  and  therefore  it  is 
admitted  as  proof  of  the  crime  to  whicli  it  refers  ;  but  a  confession 
forced  from  the  mind  by  the  flattery  of  hope,  or  by  the  torture  of 
fear,  comes  in  so  questional)lc  a  shape,  Avlicn  it  is  to  be  considered 
as  the  evidence  of  guilt,  tliat  no  credit  ought  to  be  given  to  it ;  and 
therefore  it  is  rejected."  *  The  material  inquiry,  therefore,  is, 
whether  the  confession  has  been  obtained  by  the  influence  of  hope 
or  fear,  a})plied  by  a  third  person  to  the  prisoner's  mind.  The 
evidence  to  this  point,  being  in  its  nature  preliminary,  is  addressed 

V.  Steptoe,  4  C.  &  P.  397  ;  Rex  v.  Clewes,  tending  to  implicate  the  prisoner  in  the 

4  C.  &  P.  221 ;  Respublica  v.  McCarty,  2  crime  charged,  even  tliough,  in  terms,  it 

Dall.  86,  88;  Bower  v.  The  State,  5  Miss,  is  an  accusation  of  another,  or  a  refusal  to 

8(J4;  ««/»•((,§§  201,  215;  [State  w.  Mahon,  confess.     Rex  v.  Tyler,  1   C.  &  P.  129; 

32  Vt.  241.]  Rex  v.  Enoch,  5  C'  &,  P.  539.     See  fur- 

1  Rex  r.  Ilearne,  4  C.  &  P.  215;  Rex  ther,  as  to  tiie  object  of  the  rule,  Rex  v. 

V.  Clewes,  Id.  221,  per  Littledale,  J.,  wlio  Court,  7  C.  &  P.  486,  per  Littledale,  J. ; 

said   he   had  considered  this  point  very  The  People  v.  Ward,  15  Wend.  23l. 

much,  and  was  of  opinion  that  the  names  '^  In  VVarickshall's  case,  1  Leacli's  Cr. 

ouglit  not  tr)  he  left  out.    Itmay  he  ailded,  Cas.  299;   McNally's  Evid.  47;  Knapp's 

that  the  creilit  to  he  given  to  the  coiife.s-  case,  10  Pick.  489,  490;  Chabbock's  case, 

sion  Tuay  depend  in\icii  on  the  ])rol)ability  1  Mass.  144. 

that  the  [jcrsons  nameil  were  likely  to  en-  *  In  Scotland,  this  distinction  between 

gage  in  such  a  transaction.     See  also  Rex  voluntary   confessions   and    those    which 

V.  Fletcher,  Id.  250.     The  point  was  de-  have  been  extorted  by  fear  or  elicited  by 

cided  in  the  same  way,  in  Rex  v.  Walker,  j)romises  is  not  recognized,  but  all  confes- 

6  C.  &  P.  175,  by  (iurney,  R.,  who  said  it  sions,  obtained  in  either  mode,  are  admis- 

liad  been  much  considered  by  the  judges,  sible  at  the  discretion  of  the  judge.     In 

Mr.    Justice     I'arke    thought    otherwise,  strong  cases  of  midue  iiitlueni^e,  the  course 

Barstow's  case,  Lewin's  Cr.  Cas.  110.  is  to  reject  them;    otherwise,   the  credi- 

■■^  1  Phil,  on  Evid.  401;    2  East,  P.  C.  bility  of  the  evidence  is  left  to  the  jury. 

659.     The  rule  excludes  not  only  direct  See  Alison's  Criminal  Law  of  Scotland, 

confessions,    but    any    other    declaration  pp.  581,  582. 


CHAP,  XII.] 


OF   CONFESSIONS. 


249 


to  the  jiulge,  who  admits  the  proof  of  the  confession  to  the  jury,  or 
rejects  it,  as  he  may  or  may  not  find  it  to  have  been  drawn  from 
the  prisoner,  by  the  application  of  those  motives.^  This  matter 
resting  wholly  in  the  discretion  of  the  judge,  upon  all  the  circum- 
stances of  the  case,  it  is  difficult  to  lay  down  particular  rules,  d 
priori  J  for  the  government  of  that  discretion.  The  rule  of  law,  I 
applicable  to  all  cases,  only  demands  that  the  confession  shall 
have  been  made  voluntary,  without  the  appliances  of  hojic  or  fear, 
by  any  other  person ;  and  whether  it  was  so  made  or  not  is  for 
him  to  determine,  iipon  consideration  of  the  age,  situation,  and 
character  of  the  prisoner,  and  the  circumstances  under  which  it 
was  made.2  Language  addressed  by  others,  and  sufficient  to  over- 
come the  mind  of  one,  may  have  no  efifect  upon  that  of  another ; 
a  consideration  which  may  serve  to  reconcile  some  contradictory 
decisions,  where  the  principal  facts  appear  similar  in  the  reports, 
but  the  lesser  circumstances,  though  often  very  material  in  such 
preliminary  inquiries,  are  omitted.  But  it  cannot  be  denied  that 
this  rule  has  been  sometimes  extended  quite  too  far,  and  been 
applied  to  cases  where  there  could  be  no  reason  to  suppose  that 
the  inducement  had  any  influence  upon  the  mind  of  the  prisoner.^ 


1  Boyd  V.  The  State,  2  Humphreys, 
E.  37 ;  Kegina  v.  Martin,  1  Armstr.  Mac- 
artn.  &  Ogle,  R.  197  ;  The  State  i'.  Grant, 
9  Shepl.  171;  United  States  v.  Nott,  1 
McLean,  499;  The  State  v.  Harman,  3 
Harringt.  567.  Tiie  harden  of  proof,  to 
show  tliat  an  inducement  has  been  held 
out,  or  improper  iuHuence  used,  is  on  the 
prisoner.  Reg.  v.  Garner,  12  Jur.  944 ; 
2  C.  &  K.  920. 

•^  McNally's  Evid.  43 ;  Nute's  case,  6 
Petersdorf's  Ahr.  82 ;  Knapp's  case,  10 
rick.  490 ;  United  States  v.  Nott,  1  Mc- 
Lean, 499 ;  sHjtra,  §  49  ;  Guild's  case,  5 
Halst.  163,  180 ;  Drew's  case,  8  C.  &  V. 
140 ;  Re.x  v.  Thomas,  7  C.  &  P.  345 ;  Re.x 
V.  Court,  Id.  486. 

'^  (The  cases  on  this  subject  have  re- 
cently been  very  fully  reviewed  in  Reg. 
V.  Baldry,  16  Jur.  599,  [decided  in  the 
Court  of  Criminal  Api>cal,  April  24,  1852, 
12  Eng.  Law  &  Eq.  R.  590.]  In  that  case, 
the  constiilile  who  ajiprehcnded  the  pris- 
oner, having  told  him  the  nature  of  the 
charge,  said  :  "  He  need  not  say  any  thing 
to  crmiinate  himself;  what  he  did  say 
wauKT  he  taken  tlown,  and  used  as  evi- 
dence against  him ; "  and  the  prisoner 
thereupon  having  made  a  confession,  tiie 
court  held  the  confession  admissible. 
Parke,  B.,  said  :  "  By  the  law  of  Englanil, 


in  order  to  render  a  confession  admissible 
in  evidence,  it  must  be  perfectly  volun- 
tary ;  and  there  is  no  doubt  that  any  in- 
ducement, in  the  nature  of  a  promise  or 
of  a  threat,  lield  out  by  a  person  in  au- 
thority, vitiates  a  confession.  The  de- 
cisions to  that  effect  have  gone  a  long 
way.  Whether  it  would  not  have  been 
better  to  have  left  the  whole  to  go  to  the 
jury,  it  is  now  too  late  to  inquire ;  but  I 
think  there  has  been  too  much  tenderness 
towards  prisoners  in  this  matter.  I  con- 
fess that  I  cannot  look  at  the  decisions 
without  some  shame,  when  I  consider 
what  objections  have  prevailed  to  prevent 
the  reception  of  contessions  in  evidence ; 
and  I  agree  with  the  observation,  —  that 
the  rule  has  been  extended  quite  too  far, 
and  that  justice  and  counnon  sense  have 
too  frequently  been  sacritied  at  the  shrine 
of  mercy."  Lord  Campbell,  C.  J.,  stated 
the  rule  to  be,  that  "  if  there  be  any 
worldly  advantage  held  out,  or  any  harm 
threatened,  the  confession  must  be  ex- 
cluded ; "  in  which  the  other  judge  con- 
curred.) [In  State  c  Grant,  22  5laine,  171, 
the  general  rule  is  thus  staled  :  "  To  ex- 
clude the  contession,  there  must  appear  to 
have  been  held  out  some  fear  of  personal 
injury,  or  hope  of  personal  benefit,  of  a 
temporal  nature  ;  "  and  this  rule  was  said 


250 


LAW   OF   EVIDENCE. 


[part  II. 


§  220.  The  rule  under  consideration  has  been  illustrated  in  a 
variety  of  cases.  Thus,  where  the  prosecutor  said  to  the  prisoner, 
"  Unless  you  give  me  a  more  satisfactory  account,  I  will  take  you 
l)cforc  a  mao-istrate,"  evidence  of  the  confession  thereupon  made 
was  rejected.!  j^  ^as  also  rejected,  where  the  language  used  by 
the  prosecutor  was,  "  If  you  will  tell  me  where  my  goods  are,  I 
will  be  favorable  to  you  ;  "  ^  where  the  constable  who  arrested  the 
prisoner,  said,  "  It  is  of  no  use  for  you  to  deny  it,  for  there  are 
the  man  and  boy  who  will  swear  they  saw  you  do  it ; "  ^  where  the 
prosecutor  said,  "  He  only  wanted  his  money,  and  if  the  prisoner 
gave  him  that  he  might  go  to  the  devil,  if  he  pleased  ; "  *  —  and 
where  he  said  he  should  be  obliged  to  the  prisoner,  if  he  would 
tell  all  he  knew  about  it,  adding,  "  If  you  will  not,  of  course  we 
can  do  nothing,"  meaning  nothing  for  the  prisoner.^  So  where  the 
prisoner's  superior  officer  in  the  police  said  to  him,  "  Now  be 
cautious  in  the  answers  you  give  me  to  the  questions  I  am  going 
to  put  to  you  about  this  watch ; "  the  confession  was  held  inad- 
missible.*^ There  is  more  difficulty  in  ascertaining  what  is  such 
a  threat,  as  will  exclude  a  confession;  though  the  principle  is 
equally  clear,  that  a  confession  induced  by  threats  is  not  volun- 
tary, and  therefore  cannot  be  received.^ 


to  be  "well  expressed"  in  Common- 
wealth V.  Morey,  5  Cush.  461,  4ti3.  See 
slso   Spears  i'.  Uhio,  2  Ohio,  n.  s.  583.] 

1*See    also    Fife   v.  Commonwealth,  29 
'enn.  St.  429.] 

1  Thompson's  case,  1  Leach's  Cr.  Cas. 
325.  See  also  (Commonwealth  v.  Harman, 
4  Barr,  209  ;  The  State  v.  Cowan,  7  Ired. 
239. 

2  Cass's  case,  1  Leach's  Cr.  Cas.  828, 
note ;  Boyd  v.  The  State,  2  Humph.  11. 
37. 

,3  Rex  V.  Mills,  6  C.  &  P.  146. 

*  Rex  V.  Jones,  Russ.  &  Ry.  152.  See 
also  Griffin's  case,  Id.  151. 

5  Rex  V.  Patridge,  7  C.  &  P.  551.  See 
also  Guild's  case,  5  Halst.  163. 

"  Regina  v.  Fleming,  1  Armst.  Mac- 
artn.  &  Ogle,  R.  330.  P.ut  where  the  ex- 
amining magistrate  said  to  the  prisoner, 
"  He  sure  you  say  nothing  but  the  truth, 
or  it  will  bo  taken  against  you,  and  may 
be  given  in  evidence  against  you  at  your 
trial,"  the  statement  thereupon  made  was 
held  admissible.  Reg.  v.  Holmes,  1  C.  & 
K.  248;  Reg.  v.  Atwood,  5  Cox,  C.  C. 
322,  S.  P.  [One  under  arrest  for  stealing 
was  visited  in  jail  Ijy  the  prosecutor,  who 
said  to  him,  that  if  he  wished  for  any  con- 
versation he  could  have  a  chance  ;  the  pris- 


oner made  no  reply  for  a  minute  or  two  ; 
the  prosecutor  then  told  the  prisoner  he 
thought  it  was  better  for  all  concerned  in 
all  cases  for  the  guilty  to  confess ;  the 
prisoner  then  said  he  supposed  he  should 
liave  to  stay  there  whether  he  confessed 
or  not ;  the  i)rosecutor  replied  that  he 
supposed  he  would,  and  in  his  opinion  it 
would  made  no  diflerence  as  to  legal  pro- 
ceedings, and  that  it  was  considered  hon- 
orable in  all  cases  if  a  ])erson  was  guilty, 
to  confess.  Immediately  after  this,  the 
prisoner  made  conlession,  and  it  was  held 
admissible.  Commonwealth  v.  Morey,  1 
Gray,  401.] 

"'  Thornton's  case,  1  Mood.  Cr.  Cas. 
27  ;  Long's  case,  6  C.  &  P.  179 ;  Roseoe's 
Crim.  Evid.  34 ;  Dillon's  case,  4  Dall. 
110.  Where  the  prisoner's  superior  in 
the  post-office  said  to  the  prisoner's  wife, 
while  her  hushimd  was  in  custody  for 
opening  and  detaining  a  lett^ir,  "  Do  not 
be  frightened ;  I  hope  nothing  will  hap- 
pen to  your  husband  beyond  the  loss  of 
his  situation  ;  "  the  ])risoner's  sultsoquent 
confession  was  rejected,  it  appearing  that 
the  wife  might  have  communicated  this 
to  the  prisoner.  Regina  v.  Harding,  1 
Armst.  Macartn.  &  Ogle,  R.  340.  Where 
a   girl,  thirteen  years  old,  was  charged 


CHAP.  XII.]  OF   CONFESSIONS.  251 

§  220a.  It  is  extremely  difficult  to  reconcile  these  and  similar 
cases  with  the  spirit  of  the  rule,  as  expounded  by  Chief  Baron 
Eyre,  whose  language  is  quoted  in  a  preceding  section.  The  dif- 
ference is  between  confessions  made  voluntarily,  and  those  ^^ forced 
from  the  mind  by  the  flattery  of  hope,  or  by  the  torture  of  fear." 
If  the  party  has  made  his  own  calculation  of  the  advantages  to  be 
derived  from  confessing,  and  thereupon  has  confessed  the  crime, 
there  is  no  reason  to  say  that  it  is  not  a  voluntary  confession.  It 
seems  that,  in  order  to  exclude  a  confession,  the  motive  of  hope  or 
fear  must  be  directly  applied  by  a  third  person,  and  must  be  suf- 
ficient, in  the  judgment  of  the  court,  so  far  to  overcome  the  mind 
of  the  prisoner,  as  to  render  the  confession  unworthy  of  credit. ^ 

§  221.  But  though  promises  or  threats  have  been  used,  yet  if  it 
appears  to  the  satisfaction  of  the  judge,  that  their  influence  ivas 
totally  done  away  before  the  confession  was  made,  the  evidence 
will  be  received.  Thus,  where  a  magistrate,  who  was  also  a 
clergyman,  told  ,the  prisoner  that  if  he  was  not  the  man  who 
struck  the  fatal  blow,  and  would  disclose  all  he  knew  respecting 
the  murder,  he  would  use  all  his  endeavprs  and  influence  to  pre- 
vent any  ill  consequences  from  falling  on  him ;  and  he  accordingly 
wrote  to  the  Secretary  of  State,  and  received  an  answer,  that 
mercy  could  not  be  extended  to  the  prisoner;  which  answer  he 
communicated  to  the  prisoner,  who  afterwards  made  a  confession 
to  the  coroner  ;  it  was  held,  that  the  confession  was  clearly  vol- 
untary, and  as  such  it  was  admitted.^     So,  where  the  prisoner  had 

with  administering  poison  to  her  mistress,  true  princijile  recojrnized  as  above  quoted 

with  intent  to  murder ;  and  the  surgeon  from   Clr.  Baron  Eyre.     [*  Some  of  the 

in  attendance  had  told  her,  "it  would  be  American  states  have  relaxed  the  rule  of 

better  for  her  to  speak  the  truth  ;  "  it  was  the    former    English   practice  excluding 

held  that  her  confession,  thereupon  made,  confessions,  upon  the  slightest  suspicion 

was  not  admissible.     Reg.  r.  Garner,  12  of  any  influence  brought  to  bear  upon  the 

Jur.  948 ;   1   Denison's   Cr.  Cas.  R.  329.  mind  of  the  accused.     Hence  if  the  pris- 

[A  confession  made  after  the  inducement  oner  is  told  that  confession  of  guilt  could 

of  a  threat  lield  out  by  A  when  B  was  not  ]>ut  him  in  any  worse  condition,  and 

present  was  held  to  be  tlie  same  thing  as  he  had  better  tell  the  truth  at  all  times, 

if  B  had  used  the  threat ;  and  as  B  was  his  confession  is  still  admissible.     Fonts 

the  person  hlcely  to  prosecute  (he  being  v.  The  State,  8  Ohio,  n.  s.  98.     And  when 

the    owner    of  the   property  in   connec-  the  prisoner  was  told  that  it  was  of  no 

tion   with    wliich    the  otlence  was   com-  use  to  deny  his  guilt ;  that  the  gold  pieces 

mitted),  he  was    a   person  in  authority',  were  found  where  he  ])assed  them,  and  he 

so   tliat   the  confession    made    after    the  had   better  own  up,  it  was  held  not  to 

inducement    held    out    in    his    presence  amount  to  a  threat,  but  only  to  an  induce- 

was  not  ailmissible   in   evidence.      Regi-  nient,  and  so  was  admissible  under  the 

na  V.  Luckhurst,  22  Eng.  Law  and  Eq.  statute   of  Indiana.      State   v.  Freeman, 

604.]  12  Ind.  100. 

1  See  Regina  v.  Baldry,  16  Jur.  599;  -  Rex  v.  Clewes,  4  C.  &  P.  221.     [See 

12  Eng.  Law  and  Eq.  R.  590;   where  this  State  v.  Vaigneur,  5  Rich.  391.] 
subject  was  very  fully  discussed,  and  the 


252  LAW   OF   EVIDENCE.  [PART  II. 

been  induced,  by  promises  of  favor,  to  make  a  confession,  which 
was  for  that  cause  excluded,  but  about  five  months  afterwards,  and 
after  having  been  solemnly  warned  by  two  magistrates  that  ho 
nuist  expect  death  and  prepare  to  meet  it,  he  again  made  a  full 
confession,  this  latter  confession  was  admitted  in  evidence.^  In 
this  case,  upon  much  consideration,  the  rule  was  stated  to  be, 
that,  although  an  original  confession  may  have  been  obtained  l)y 
improper  means,  yet  subse(]uent  confessions  of  the  same  or  of  like 
facts  may  l)e  admitted,  if  the  court  believes,  from  the  length  of 
time  intervening,  or  from  proper  warning  of  the  consequences 
of  confession,  or  from  other  circumstances,  that  the  delusive  hopes 
or  fears,  under  the  influence  of  which  the  original  confession  was 
obtained,  were  entirely  dispelled.^  In  the  absence  of  any  such 
circumstances,  the  influence  of  the  motives  proved  to  have  been 
offered  will  be  presumed  to  continue,  and  to  have  produced  the 
confession,  unless  the  contrary  is  shown  by  clear  evidence ;  and 
the  confession  will  therefore  be  rejected.^  Accordingly,  where  an 
inducement  has  been  held  out  by  an  officer,  or  a  prosecutor,  but 
the  prisoner  is  subsequently  warned  by  the  magistrate,  that  what 
he  may  say  will  be  evidence  against  himself,  or  that  a  confession 
will  be  of  no  benefit  to  him,  or  he  is  simply  cautioned  by  the 
magistrate  not  to  say  any  thing  against  himself,  his  confession, 
afterwards  made,  will  be  received  as  a  voluntary  confession.* 

^  Guild's  case,  5  Halst.  163,  168.  upon  express  promises  of  favor  by  the 

2  Ciiild's  ease,  5  Halst.  180.    But  otlier-  oHiecr.     After   being  detained   forty-four 

wise  the  evidence  of  a  subsequent  cont(?s-  liours  in  tlie  watcli-liouse,  he  was  brought 

sion,  made  on  the  basis  of  a  prior  one  before  the  Mayor,  in  the  same  ajiartment 

unduly  obtainoil,  will  be  rejected.     Com-  Mhere  he  liad  made  the  confession,  and 

mouwealtli  r.  Ilarman,  4  Barr,  209;  Tlie  his  examination  was  taken  in  jinsence  of 

Stiite  r.  Roberts,  1  Dev.  259.  tin'  saiiic  hi(]h  consUihh'.     Tlie  mayor  knew 

"  Robert's  case,  1  Devereux,  II.  259,  nothing  of  the  previous  confession ;  and 

264 ;  Maynell's  case,  2  Lewins,  Cr.  Cas.  gave  tlie  prisoner  no  more  than  the  usual 

122;  Sherrington's  case,  Id.  123;  Hex  i>.  caution  not  to  answer  any  questions  un- 

Cooper,  5  C.  &  P.  535.  less  he  jtleased,  and  telling  him  that  he 

*  Hex  ('.  Howes,  6  C.  &  P.  404 ;  Rex  was  not  bound  to  criminate  himself.  In 
r.  Richards,  5  C.  &  P.  318 ;  Nute's  case,  this  e.xamination,  the  same  confession  was 
2  Russ.  on  Crimes,  648;  Joy  on  the  Ad-  rejieated ;  but  the  judge  rejected  it,  as 
missibility  of  Confessions,  pp.  27,  28,  inadmissible;  being  of  opinion  that,  being 
69-75;  l{ex  v.  Bryan,  Jebb's  Cr.  Cas.  made  in  the  same  room  where  it  was  first 
,157.  If  the  inducement  was  held  out  by  made,  and  under  the  eye  of  the  same 
a  ])ers(m  of  superior  authority,  and  the  police-olliccr  to  whom  it  was  made,  there 
confession  was  afterwards  made  to  one  of  was  "  strong  reason  to  infer  that  the  last 
inferior  authority,  as  a  turnkey,  it  seems  examination  was  but  intended  to  put  in 
inadmissible,  uidess  the  prisoner  was  first  due  form  of  law  the  first  confession,  ami 
cautioneil  by  the  latter.  Rex  v.  Cooper,  that  the  ))romise  of  favor  continued  as 
5  C.  &  P.  535.  In  the  United  States  v.  first  made."  The  legal  presuin[)tion,  he 
Chapman,  4  Am.  Law  Jour.  440,  n.  s.,  said,  was,  that  the  infiuence,  which  in- 
the  ])risoiier  ha<l  made  a  confession  to  the  duced  the  confession  to  the  ofhcer,  eon- 
high  constable  who  had  him  under  arrest,  tinned  when  it  was  made  to  the  mayor; 


CHAP.  XII.]  OF   CONFESSIONS.  253 

§  222.  In  regard  to  the  person  hy  whom  the  iyiducements  were 
offered,  it  is  very  clear,  that  if  they  were  offered  by  the  prosecutor,^ 
or  by  liis  wife,  the  prisoner  being  his  servant,^  or  by  an  officer 
having  the  prisoner  in  custody ,3  or  by  a  magistrate,*  or,  indeed, 
by  any  one  having  authority  over  him,  or  over  the  prosecution 
itself,^  or  by  a  private  person  in  the  presence  of  one  in  authority,^ 
tlie  confession  will  not  be  deemed  voluntary  and  will  be  rejected. 
The  authority,  known  to  be  possessed  by  those  persons,  may  well 
be  supposed  both  to  animate  the  prisoner's  hopes  of  f^vor,  on  the 
one  hand,  and  on  the  other  to*  inspire  him  with  awe,  and  in  some 
degree  to  overcome  the  powers  of  his  mind,  jit  has  been  argued, 
that  a  confession  made  upon  the  promises  or  threats  of  a  person, 
erroneously  believed  by  the  prisoner  to  possess  such  authority, 
the  person  assuming  to  act  in  the  capacity  of  an  officer  or  magis- 
;trate,  ought,  upon  the  same  principle,  to  be  excluded.  |  The  prin- 
ciple itself  would  seem  to  require  such  exclusion  ;  but  the  point 
is  not  known  to  have  received  any  judicial  consideration. 

.§  223.  But  whether  a  confession,  made  to  a  person  ivho  has  no 
authority,  upon  an  inducement  held  out  by  that  person,  is  receiv- 
able, is  a  question  upon  which  learned  judges  are  known  to  enter- 
tain opposite  opinions.^     In  one  case,  it  was  laid  down  as  a  settled 

and  this  presumption  it  was  the  duty  of  *  Eudd's  case,  1  Leach's  Cr.  Cas.  135 ; 

tlie  prosecutor  to  repel.  Guild's  case,  5  llalst.  163. 

1  Thompson's  case,  1  Leach's  Cr.  Cas.  ^  Rex  v.  Parratt,  4  C.  &  P.  570,  which 
325 ;  Cass's  case.  Id.  328,  n. ;  Rex  v.  was  a  confession  by  a  sailor  to  his  cap- 
Jones,  Russ.  &  R.  152;  Rex  v.  Griffin,  Id.  tain,  who  threatened  him  with  prison,  on 
151;  Cliabbock's  case,  1  ISIass.  144;  Rex  a  charge  of  stealing  a  watch.  Rex  v. 
V.  Gibbons,  1  C.  &  P.  97,  note  Ca) ;  Rex  Enoch,  5  C.  &  P.  539,  was  a  confession 
V.  Partridge,  7  C.  &  P.  551 ;  Robert's  made  to  a  woman,  in  whose  custody  the 
case,  1  Dever.  259 ;  Rex  v.  Jenkins,  Russ.  prisoner,  who  was  a  female,  had  been  left 
&  Ry.  492 ;  Regina  v.  Hearn,  1  Car.  &  by  the  officer.  The  official  character 
Marsli.  109.  See  also  Phil.  &  Am.  on  of  the  person  to  whom  the  confession  is  ' 
Evid.  430,  431.  made   does    not  affect   its    admissibility, 

■^  Rex  V.  Upchurch,  1  Mood.  Cr.  Cas.  provided  no  inducements  were  employed. 

465;  Regina  v.  Hewett,  1  Car.  &  Marshm.  Joy  on  Confessions,  &c.,  pp.  59-61  ;  Rex 

634 ;  Rex  v.  Taylor,  8  C.  &  P.  733.     In  r.    Gibbons,    1    C.   &   P.   97,   note   (&) ; 

Rex  V.  Simiison,  1  Mood.  Cr.  Cas.  410,  Knapp's    case,    10  Pick.   477 ;    Mosler's 

the   inducements  were   held  out  by  the  case,  6  Penn.  Law  Journ.  90 ;    4  Barr, 

mother-in-law    of  the  jirosecutor,    in    his  264. 

liouse,  and  in  the  presence  of  his  wife,  *'  Robert's  case,  1  Dever.  259 ;  Rex  v. 
who  was  very  deaf;  and  the  confessions  Pountney,  7  C.  &  P.  302;    Reg.  ;;.  Laugh- 
thus  obtained  were  held  inadmissible.   See  er,  2  C.  &  K.  225;  [Reg.  v.  Luckhurst, 
Mr.  Joy's  Treatise  on  the  Admissibility  22  Eng.  Law  &  Eq.  R.  604.] 
of  Confessions,  pp.  5-10.  ~  So  stated  by  Parke,   B.,  in  Rex  v. 

3  Rex  V.  Swatkins,  4  C.  &'P.  548  ;  Rex  Spencer,  7  C.  &  P.  776.     See  also  Rex  v. 

V.  Mills,  6  C.  &  P.  14() ;  Rex  i:  Sextons,  Pountney,    Id.   302,    per   Alderson,    B. ; 

6  Petersd.  Abr.  84 ;  Rex  v.   Shepherd,  7  Rex  v.  Row,  Russ.  &  R.  153,  i)er  Cham- 

C.  &  P.  579.     See  also  Rex  v.  Thornton,  bre,  J.     [Shaw,  C.  J.,  in  giving  the  opin- 

1  Mood.  Cr.  Cas.  27.     But  see  Common-  ion   of   the   court  in    Commonwealth   v. 

wealth  V.  Mosler,  4  Barr,  264.  Morey,    1    Gray,    461,    463,    said,    "  Of 
TOL.  I.                                                           22 


2.")4  LAW    OF   EVIDENCE.  [PART   II. 

rule,  that  any  person  telling  a  prisoner  that  it  would  be  better  for 
him  to  eonfess,  will  ahvai/s  cxelude  any  confession  made  to  that 
person.^     And  this  rule  has  been  applied  in  a  variety  of  cases, 
both  early  and  more  recent.^     On  the  other  hand,  it  has  been 
lield,  that  a  promise  made  by  an  indifferent  person,  who  interfered 
officiously,  Avithout  any  kind  of  iuilhorily,  and  promised,  without 
the  means  of  performance,  can  scarcely  be  deemed  sufficient  to 
produce  any  effect,  even  on  the  weakest  mind,  as  an  inducement 
to  confess  ;,and,  accordingly,  confessions  made  under  such  circum- 
stances have  been  admitted  in  evidence.^     The  difficulty  experi- 
enced in  this  matter  seems  to  have  arisen  from  the  endeavor  to 
define  and  settle,  as  a  rule  of  law,  the  facts  and  circumstances 
which  shall  be  deemed,  in  all  cases,  to  have  influenced  the  mind 
of  the  prisoner,  in  making  the  confession.     In  regard  to  persons 
in  authority,  there  is  not  much  room  to  doubt.     Public  policy, 
also,  recpiircs  the  exclusion  of  confessions,  obtained  by  means  of 
inducements  held  out  by  such  persons.     Yet  even  here,  the  age, 
experience,  intelligence,  and  constitution,  both  physical  and  mon- 
tal,  of  prisoners,  are  so  various,  and  the  power  of  performance  so 
different,  in  the  different  persons  promising,  and  under  different 
circumstances  of  the  prosecution,  that  the  rule  will   necessarily 
sometimes  fail  of  meeting  the  truth  of  the  case.      But  as  it   is 
thought  to  succeed  in  a  large  majority  of  instances,  it  is  wisely 
adopted  as  a  rule  of  law  applicable  to  them  all.     Promises  and 
threats  by  private  persons,  however,  not  being  found  so  uniform 
in  their  operation,  perhaps  may,  with  more  propriety,  be  treated 
as  mixed  qiiestions  of  law  and  fact ;  the  principle  of  law,  that 
the  confession  must  be  voluntary,  being  strictly  adhered  to,  and  the 
question,  whether  the  promises  or  threats  of  the  private  individuals 

course,  such  inducement  must  be   held  =>  t^^x  !j.  Ilardwick,  6  Fetersd.  Abr.  84, 

out  to  the  Jiccused  by  some  one  wlio  has,  per  Wood,  B. ;  Mex  r.  Tayk)r,  8  C.  &  P. 

or   who   is   supposed  by  the  accused  to  734.     See  accordingly  Rex  v.  Giblions,  1 

to  have,  some  power  or  authority  to  as-  C.  &  P.  97  ;  Eex  v.  Tyler,  Id.  12',( ;  Rex 

sure  to  him  the  promised  siood,  or  cause  v.  Lingate,  6  Petersd.  Abr.  84  ;  '2  Lewin's 

or  influence  the  threatened'injury."    And  Cr.   Cas.   125,  note.     In  Rex  v.  Wild,  1 

to  support  tliis,  lie  cites  Commonwealth  Mood.  Cr.  Cas.  452,  tlie  prisoner,  a  boy 

V.  Tavior,  5  Cush.  606. J  under  fourteen,  was   required    to  kneel, 

1  Rex'  V.   Dunn,  4   C.  &  P.  543,  per  and    was   solemnly   adjured    to    tell   the 

Bosanquet,  J. ;  Kex  v.  Slaugliter,  8  C.  &  truth.     Tiie  conviction  upon  his  confes- 

p,  734.  sion  thus  made,  was  held  right,  but  the 

'  2  See,  accordingly.  Rex  v.  Kingston,  mode  of  obtaining  the  confession  was  very 

4  C.  &  P.  387  ;  Rex  v.  Clewes,  Id.  231  ;  much  disnpiu-ovod.     Rex  v.   Row.  Russ. 

Rex  )•.  Walkley,  6  C.  &  P.  175;  (iuild's  &  Ky.  153;   [Conuuonwealth  v.  Ilorne,  2 

case,  5  Halst.  163;  Knapp's  case,  9  Pick.  Allen,  153.] 
496,  500-510  ;  Rex  v.  Thomas,  6  C.  &  P. 
633. 


CHAP.  XII.] 


OF   CONFESSIONS. 


255 


who  employed  tliem,  were  sufficient  to  overcome  the  mind  of  the 
prisoner,  being  left  to  the  discretion  of  the  judge,  under  all  the  cir- 
cumstances of  the  case.^ 

§  224.  The  same  rule,  that  the  confession  must  be  voluntary, 


1  In  Scotland,  it  is  left  to  the  jury. 
See  Alison's  Criminal  Law  of  Scotland, 
pp.  581,  582;  siipni,  §  219,  n.  INlr.  Joj 
maintains  the  um/ualijied  proposition,  that 
"  a  confession  is  admissible  in  evidence, 
although  an  inducement  is  held  out,  if 
such  inducement  proceeds  from  a  person 
not  in  authority  over  the  prisoner  ;  "  and 
it  is  strongly  supported  by  the  authorities 
he  cites,  which  are  also  cited  in  the  notes 
to  this  section.  See  Joy  on  the  Admissi- 
bility of  Confessions,  sec.  2,  pp.  23-33. 
His  work  has  been  published  since  the 
first  edition  of  this  book  ;  but  upon  a  de- 
liberate revision  of  the  point,  I  have  con- 
cluded to  leave  it,  where  the  learned 
judges  liaA'e  stated  it  to  stand,  as  one  on 
which  they  were  divided  in  opinion. 

In  a  recent  case,  in  England,  the  rule 
stated  in  the  te.Kt  is  admitted  to  be  the 
best  rule,  though  the  learned  judges  felt 
themselves  restricted  from  adopting  it  by 
reason  of  previous  decisions.  It  was  a 
prosecution  against  a  female  servant,  for 
concealing  the  death  of  her  bastard 
child ;  and  the  question  was  upon  the 
admissibility  of  a  confession  made  to  her 
mistress,  who  told  her  "  she  had  better 
speak  the  truth."  The  judgment  of  the 
court  was  delivered  by  Farke,  B.,  as  fol- 
lows :  "  The  cases  on  this  subject  have 
gone  quite  far  enough,  and  ought  not  to 
to  be  extended.  It  is  admitted  that  the 
confessions  ought  to  be  excluded  unless 
voluntary,  and  the  judge,  not  the  jury, 
ought  to  determine  whether  they  are  so. 
One  element  in  the  consideration  of  the 
question  as  to  their  being  voluntary  is, 
whether  the  threat  or  inducement  was 
such  as  to  be  likely  to  influence  the  pris- 
oner. Perhaps  it  would  have  been  better 
to  have  held  (when  it  was  determined 
that  the  judge  was  to  decide  whether  the 
confession  was  voluntary)  that  in  ^all 
cases  he  was  to  decide  that  point  upon 
his  own  view  of  all  the  circumstances, 
including  the  nature  of  the  threat  or  in- 
ducement, and  the  character  of  the  per- 
son holding  it  out,  together;  not  neces- 
sarily excluding  the  c(^ifession  on  account 
of  the  character  of  the  person  holding  out 
the  inducement  or  threat.  But  a  rule  has 
been  laid  down  in  difierent  precedents  by 
whicli  we  are  hound,  and  that  is,  if  the 
threat  or  inducement  is  held  out,  actually 
or  constructively,  by  a  person  in  authority, 
it  cannot  be  received,  however  slight  the 
tlireat  or  inducement ;  and  the  prosecutor, 


magistrate,  or  constable  is  such  a  person, 
and  so  the  master  or  mistress  may  be.  If 
not  held  out  by  one  in  authority,  they  are 
clearly  admissible.  The  authorities  are 
collected  in  Mr.  Joy's  very  able  treatise 
on  Confessions  and  Challenges,  p.  23. 
But,  in  referring  to  the  cases  where  the 
master  and  mistress  have  been  held  to  be 
persons  in  authority,  it  is  only  when  the 
offence  concerns  the  master  or  mistress 
that  their  holding  out  the  threat  or  prom- 
ise renders  the  confession  inadmissible. 
In  Rex  V.  Upchurch  (Ry.  &  M.  865),  the 
offence  was  arson  of  the  dwelling-house, 
in  the  management  of  which  the  mistress 
took  a  part.  Reg.  r.  Taylor  (8  Car.  &  P. 
733)  is  to  the  like  efi'ect.  So  Rex  v.  Car- 
rington  (Id.  lO'J),  and  Rex  v.  Howell 
(Id.  534).  So  where  the  threat  was  used 
by  the  master  of  a  ship  to  one  of  the  crew, 
and  the  offence  committed  on  board  the 
ship  by  one  of  the  crew  towards  another ; 
and  in  that  case  also  the  master  of  the 
ship  threatened  to  apprehend  him  ;  and, 
the  offence  being  a  felony,  and  a  felony 
actually  committed,  would  have  a  power 
to  do  so  on  reasonable  suspicion  that  the 
prisoner  was  guilty.  In  Rex  v.  Warring- 
ham,  tried  before  me  at  the  Surrey 
Spring  Assizes,  1851,  the  confession  was 
in  consequence  of  what  was  said  by  the 
mistress  of  the  prisoner,  she  being  in  the 
habit  of  managing  the  shop,  and  the  of- 
fence being  larceny  from  the  shop.  This 
appears  from  my  note.  In  the  present 
case,  the  offence  of  the  prisoner  in  killing 
her  child,  or  concealing  its  dead  body, 
was  in  no  way  an  offence  against  the  mis- 
ti'ess  of  the  house.  She  was  not  the  pro- 
secutrix then,  and  there  was  no  probabil- 
ity of  herself  or  the  husband  being  the 
prosecutor  of  an  indictment  for  that  of- 
fence. In  practice,  the  prosecution  is 
always  the  result  of  a  coroner's  inquest. 
Therefore  we  are  clearly  of  opinion  that 
her  confession  was  properly  received." 
See  Reg.  v.  Moore,  16  Jur.  622;  12  Eng. 
L.  &  Eq.  R.  583. 

In  South  Carolina  it  has  been  held,  that 
where  the  prisoner,  after  due  warning  of 
all  the  consequences,  and  the  allowance 
of  sufhcient  time  for  reflection,  confesses 
his  giult  to  a  private  person,  who  has  no 
control  over  his  person  or  the  prosecu- 
tion ;  the  confession  is  admissible  in  evi- 
dence, although  the  person  may  have 
influence  and  ability  to  aid  him.  The 
State  i\  Kirby,  1  Strobhart,  155. 


266 


LAW   OF   EVIDENCE. 


[part  U. 


is  applied  in  cases  where  the  prisoner  has  been  examined  before 
a  magiHtrate,  in  the  course  of  which  examination  the  confession  is 
made.  The  practice  of  examining  the  accused  was  familiar  in 
the  Roman  jurisprudence,  and  is  still  continued  in  continental 
Europe;^  l)ut  the  maxim  of  the  common  law  was,  Nemo  tenetur 
prodere  seipsum ;  and  therefore  no  examination  of  the  prisoner 
himself  was  permitted  in  England,  until  the  passage  of  the  statutes 
of  Philip  and  Marj.^  V>y  these  statutes,  the  main  features  of 
whicli  have  been  adopted  in  several  of  the  United  States,^  the 
justices,  before  whom  any  person  shall  be  brought,  charged  with 
any  of  the  crimes  therein  mentioned,  shall  take  the  examination 
of  the  prisoner,  as  well  as  that  of  the  witnesses,  in  writing,  Avhich 
the  magistrate  shall  subscribe,  and  deliver  to  the  pro])er  officer 
of  the  court  where  the  trial  is  to  be  had.  The  signature  of  the 
prisoner,  when  not  specially  required  by  statute,  is  not  necessary ; 
though  it  is  expedient,  and  therefore  is  usually  obtained.*  The 
certilicate  of  the  magistrate,  as  will  be  hereafter  shown  in  its 
proper  placc,^  is  conclusive  evidence  of  the  manner  in  which  the 
examinatioii  was  conducted ;  and,  therefore,  where  he  had  certi- 
fied that  the  })risoner  was  examined  under  oath,  parol  evidence 
to  show  that  in  fact  no  oath  had  been  administered  to  the  prisoner 


^  The  course  of  procceiling,  in  such 
cases,  is  fully  detailed  in  15.  Carpzov. 
PracticiB  Kunnn  Criminal.  Tars  III., 
Qncvst.   113,  per  tot. 

2  1  &  2  Phil.  &  M.  c.  13 ;  2  &  3  Phil. 
&  M.  c.  10;  7  Geo.  IV.,  c.  64 ;  4  BI. 
Comm.  2U5.  The  object  of  these  statutes, 
it  is  said,  is  to  enable  the  judge  to  see 
whether  the  offence  is  bailable,  and  tliat 
both  the  judge  and  jury  may  see  whether 
the  witni'.-iSL'.s  are  consistent  or  contradic- 
tory, in  their  accounts  of  the  transaction. 
The  prisoner  should  only  be  asked,  wheth- 
er he  wishes  to  say  any  thing  in  anwer  to 
the  charge,  when  he  had  heard  all  that 
the  witnesses  in  support  of  it  had  to  say 
against  him.  See  Joy  on  Confessions,  &c., 
pp.  \yl-.)\ ;  liex  (;.  Saunders,  2  Leach's 
Cr.  Cas.  (3.J2 ;  Ue.x  v.  Fagg,  4  C.  &  P.  567. 
But  if  lie  is  called  upon  to  make  his  an- 
swer to  the  charge,  before  he  is  put  in 
possession  of  all  the  evidence  against  him, 
this  iri'egidarity  is  not  sulHcient  to  exclude 
the  evidence  of  his  confession.  Kex  v. 
Bell,  5  C.  &  P.  163.  His  statement  is  not 
an  answer  to  the  depositions,  but  to  the 
charge.  He  is  not  eiuitletl  to  have  the 
depositions  first  read,  as  a  matter  of  right. 
But  if  his  examination  refers  to  any  par- 


ticular depositions,  he  is  entitled  to  have 
them  read  at  the  trial,  by  way  of  exjjlana- 
tion.  Dennis's  case,  2  Lew.  Cr.  Cas.  261. 
See  further,  Rowland  r.  Ashby,  Ky.  &  M. 
231,  per  Best,  C.  J. ;  Kex  (;.  Simons,  6 
C.  &  P.  540;  Pegina  v.  Arftold,  8  C.  &  P. 
621. 

'^  See  New  York  Pevised  Statutes,  Part 
4,  c.  2,  tit.  2,  §§  14,  15,  16,  26 ;  Bellinger's 
case,  8  Wend.  5',)5,  59'J ;  Elmer's  Laws  of 
i\Vw  Jcrsci/,  ]).  450,  §  6  ;  Laws  of  Aldbuma, 
(Toulmin's  Digest,)  tit.  17,  c.  3,  §  2,  p. 
2U);  Laws  of  Tennessee  (Carrnthers  and 
Kicholson's  Digest),  p.  426;  North  Caro- 
lina, Hev.  St.  c.  35,  §  1  ;  Laws  of  Missis- 
sijij)!  (Alden  and  \"an  Iloesen's  Digest), 
c.  70,  §  5,  p.  532  ;  Hutchinson's  Dig.  c.  50, 
art.  2,  5}  5;  Laws  of  JM/airan'  (Revised 
Code  of  182U),  p.  63;  Brevard's  Laws  of 
South  Carolina,  vol.  1,  p.  460;  Laws  of 
Missouri  (Revision  of  1835),  p.  476;  Id. 
Pev.  Stat.  1845,  c.  ^38,  §  15-17.  See  also 
Massachusetts  Rev.  Stat.  c.  85,  §  25 ;  Res- 
publica  V.  McCarty,  2  Dall.  87,  per  Mc- 
Kean,  C.  J. 

'  1  Chitty's  Crim.  Law,  87 ;  Lambe's 
case,  2  Leach's  Cr.  Cas.  625. 

^  Infra,  §  227. 


CHAP.  XII.]  OF   CONFESSIONS.  257 

was  held  inadmi,ssil)lc.i  But  tlie  examination  cannot  be  given  in 
evidence  until  its  identity  is  proved.^  If  the  prisoner  has  signed 
it  with  his  name,  this  implies  that  he  can  read,  and  it  is  admitted 
on  proof  of  his  signature ;  but  if  he  has  signed  it  with  his  mark 
only,  or  has  not  signed  it  at  all,  the  magistrate  or  his  clerk  must 
be  called  to  identify  the  writing,  and  prove  that  it  was  truly  read 
to  the  prisoner,  who  assented  to  its  correctness.^ 

§  225.  The  manner  of  examination  is,  therefore,  particularly 
regarded ;  and  if  it  appears  that  the  prisoner  had  not  been  left 
wholly  free,  and  did  not  consider  himself  to  be  so,  in  what  he  was 
called  upon  to  say,  or  did  not  feel  himself  at  liberty  wholly  to 
decline  any  explanation  or  declaration  whatever,  the  examination 
is  not  held  to  have  been  voluntary.*  In  sucli  cases,  not  only  is 
the  written  evidence  rejected,  but  oral  evidence  will  not  be  received 
of  what  the  prisoner  said  on  that  occasion.^  The  prisoner,  there- 
fore, must  not  be  sworn.^  But  where,  being  mistaken  for  a  wit- 
ness, he  was  sworn,  and  afterwards,  the  mistake  being  discovered, 
the  deposition  was  destroyed ;  and  the  prisoner,  after  having  been 
cautioned  by  the  magistrate,  subsequently  made  a  statement ; 
this  latter  statement  was  held  admissible.'^  It  may,  at  first  view, 
appear  unreasonable  to  refuse  evidence  of  confession,  merely 
because  it  was  made  under  oath,  thus  having  in  favor  of  its  ti"uth, 
one  of  the  hi^'hest  sanctions  known  in  the  law.     But  it  is  to  be 


^  Rex  V.  Smith  &  Homage,  1  Stark,  course,  in  substance,  was   recommended 

R.  242;    Rex  r.  Rivers,  7   C.  &  P.  177;  by  Lord  Dentiian,  in  Regina  v.  ^^nold, 

Regina  v.  Pikesley,  9  C.  &  P.  124.  8    C.    &   P.    022.     Tlie   omission   of  tliis 

^  Hawk.  P.  C,  b.  2,  c.46,  §  3,  note  (1).  course,  liowever,  will  not  alone  render  the 

^  Rex  v.  Chappel,  1  M.  &  Rob.  31)5.  confession  inadmissible. 

*  The  proper  course  to  be  pursued  in  '"  Rex  v.  Rivers,  7  C.  &  P.  177 ;  Rex 

these  cases,  by  tbe  examining  magistrate,  v.  Smith  et  al.  1  Stark.  R.  242;  Ilarman's 

is  thus  laid  down  by  Gurney,  B.,  in  Rex  case,  6  Pennsyl.  Law  Journ.  120.    But  an 

V.  Greene,  5  C.  &  P.  312:  "  To  dissuade  a  examination,  l)y  way  of  question  and  an- 

prisoner  was  wrong.     A  prisoner  ought  to  swer,  is  now  held  good,  if  it  appears  free 

be  told  that  his  confessing  will  not  operate  from  any  other  objection.     Rex  v.  Ellis, 

at  all  in  his  favor;  and  that  he  must  not  Ry.  &M.  432;  2  Stark.  Evid.  2'J,  note  (//) ; 

expect  any  favor  because  he  makes  a  con-  tliough  formerly  it  was  held  otherwise,  in 

fession  ;  and  that,  if  anj' one  has  told  him  Wilson's   case,    Holt,    R.  597.      See  ace. 

that  it  will  be  better  for  him  to  confess,  or  Jones's  case,   2  Russ.  058,  n. ;    Roscoe's 

worse  for  him  if  he  does  not,  he  must  pay  Crim.  Evid.  44.     So,  if  the  questions  were 

no  attention  to  it ;  and  tliat  any  thing  he  put  by  a  police-officer.  Rex  f.  Thornton,  1 

says  to  criminate  himself  will  be  used  as  ]\Iood.  Cr.  Cas.  27 ;  or,  by  a  fellow-pris- 

evidence  against  him  on  his  trial.     After  oner.  Rex  v.  Shaw,  6  C.  &  P.  872,  they 

that  admonition,  it  ought  to  be  left  entirely  are  not,  on  that  account,   objectionable, 

to   himself,    whether   he   will   make   any  See  also  Rex  i\  Wild,  1  JNIood.  Cr.  Cas. 

statement  or  not ;  but  he  ought  not  to  be  452 ;  inj'ra,  §  229. 

dissuaded  from  making  a  pertectly  volun-  •>  Bull.  N.  P.  242;  Hawk.  P.  C,  b.  2, 

tary  confession,  because  that  is  shutting  ch.  46,  §  3. 

one  of  the  sources  of  justice."     The  same  "^  Rex  v.  Webb,  4  C.  &  P.  5G4. 

22* 


258  LAW   OF   EVIDENCE.  [PART  II. 

observed,  that  none  but  voluntary  confessions  are  admissible  ;  and 
that  if  to  the  perplexities  and  embarrassments  of  the  prisoner's 
situation  are  added  the  danger  of  perjury,  and  the  dread  of  addi- 
tional penalties,  the  confession  can  scarcely  be  regarded  as  volun- 
tary ;  but,  on  the  contrary,  it  seems  to  be  made  under  the  very 
influences  which  the  law  is  particularly  solicitous  to  avoid.  But' 
where  the  prisoner,  having  been  examined  as  a  witness,  in  a 
prosecution  against  another  person,  answered  questions  to  which 
he  might  have  demurred,  as  tending  to  criminate  himself,  and 
which,  therefore,  he  was  not  bound  to  answer,  his  answers  are 
deemed  voluntary,  and,  as  such,  may  be  subsequently  used  against 
lumself,  for  all  purposes ;  ^  though  where  his  answers  are  com- 
pulsory, and  under  the  peril  of  punishment  for  contempt,  they  are 
not  received. 2 

§  226.  Thus,  also,  where  several  persons,  among  whom  was  the 
prisoner,  was  summoned  before  a  committing  magistrate,  upon  an 
investigation  touching  a  felony,  there  being  at  that  time  no  specific 
charge  against  any  person ;  and  the  prisoner,  being  sworn  with 
the  others,  made  a  statement,  and  at  the  conclusion  of  the  exami- 
nation he  was  committed  for  trial ;  it  was  held,  that  the  statement 
so  made  was  not  admissible  in  evidence  against  the  prisoner.^ 
This  case  may  seem,  at  the  first  view,  to  be  at  variance  with  what 
has  been  just  stated  as  the  general  principle,  in  regard  to  testi- 
mony given  in  another  case ;  but  the  difference  lies  in  the  different 
natures  of  the  two  proceedings.  In  the  former  case,  the  mind  of 
the  witness  is  not  disturbed  by  a  criminal  charge,  and,  moreover, 

1  2  Stark.  Evid.  28 ;  "Wlieater's  case,  2  Mahon,  15  N.  Y.  Ct.  App.  384,  it  was 
Lew.  Cr.  Cas.  157 ;  2  Mood.  Cr.  Cas.  45,  liekl,  tliat  where  one  arrested,  without 
8.  c. ;  Joy  on  Confessions,  &c.,  pp.  62-6*5 ;  warrant,  upon  suspicion  of  beinj^  guilty  of 
Hawarth's  case,  Roscoe's  Crim.  ICvid.  45 ;  murder,  was  examined  before  the  coroner, 
Hex  V.  Tuby,  5  C.  &  P.  ooO,  cited  and  at  the  inquest,  upon  oath  as  a  witness, 
agreed  in'  Hex  v.  Lewis,  6  C.  &  F.  161 ;  that  his  statements,  so  made,  could  not  be 
Hex  ;;.  Walker,  cited  by  Gurney,  B.,  in  given  in  evidence  against  him  on  his  trial 
the  same  case.  But  see  Rex  v.  Davis,  6  for  murder.  But  in  a  somewliat  similar 
C.  &  r.  177,  contra.  [See  also  Hendrick-  state  of  facts,  the  decision  was  different  in 
son  V.  The  People,  6  Selden,  (N.  Y.)  13.]  SclioetHer  v.  State,  3  AVis.  823.  It  would 
[*  Commonwealth  r.  Iving,  8  Gray,  501.]  seem  that,  upon  principle,  if  tlie  witness 

2  6'(/y»v(,  §  1".)3,  note ;  infra,  %  iSJl;  Re-  vohmtccred  to  give  evidence,  with  the 
gina  V.  Garl)ett,  2  C.  &  K.  474.  But  where  full  un<icrstanding  that  he  was  at  liberty 
one  was  examined  before  the  grand-jury  to  decline,  and  that  wliat  he  said  would 
as  a  witness,  on  a  complaint  against  an-  be  liable  to  be  used  as  evidence  against 
other  person,  and  was  afterwards  himself  him,  he'  could  not  object  to  it  being  so 
indicted  for  that  same  otlence,  it  was  held  used.] 

that  his  testimony  before  the  grand-jury  ^  Rex  v.  Lewis,  6  C.  &  P.  161,  per  Gur- 

was  admissible  in  evidence  against  him.  ney,  B.  ;   Regina  v.  Wheelej^  8  C.  &  P. 

The  State  v.  Broughton,  7  Ired.  ',t6.     [*  In  250;  Regina  v.  Owen,  y  C.  &  P.  238. 
a  somewhat  recent  case,  People  v.  Mc- 


CHAP.  XII.]  OF  CONFESSIONS.  259 

he  is  generally  aided  and  protected  by  the  presence  of  the  counsel 
in  the  cause ;  but  in  the  latter  case,  being  a  prisoner,  subjected 
to  an  inquisitorial  examination,  and  himself  at  least  in  danger 
of  an  accusation,  his  mind  is  brought  under  the  full  influence  of 
tliose  disturbing  forces  against  which  it  is  the  policy  of  the  law  to 
j)rotect  liim.^ 

§  227.  As  the  statutes  require  that  the  magistrate  shall  reduce 
to  writing  the  whole  examination,  or  so  much  thereof  as  shall 
be  material,  the  law  condusiveli/  presumes,  thatr  if  diij'  UMmg..wa§ 
taken  down  in  writing,  the  magistrate  performed  all  his  duty  bjg 
Jaking  down  all  that  was  matei;j^§l.^  In  such  case,  no  parol  evi- 
dencf  of  what  the  prisoner  may  have  said  on  that  occasion  can 
be  •received.^  But  if  it  is  shown  that  the  examination  was  not 
reduced  to  writing ;  or  if  the  written  examination  is  wholly  inad- 
missible, by  reason  of  irregularity ;  parol  evidence  is  admissible 
to  prove  what  he  voluntarily  disclosed.*  And  if  it  remains  uncer- 
tain whether  it  was  reduced  to  writing  by  the  magistrate  or  not, 
it  will  be  presumed  that  he  did  his  duty,  and  oral  evidence  will 
be  rejected.^  A  written  examination,  however,  will  not  exclude 
parol  evidence  of  a  confession  previously  and  extrajudicially 
made  ;  ^  nor  of  something  incidentally  said  by  the  prisoner  during 

1  It  has  been  thought,  on  the  authority  respecting  the  particular  felony  under  ex- 

of  Britton's  case,   1  M.  &  Kob.  297,  that  amination,  should  be  taken  down,  but  not 

the  balance-slieet  of  a  bankrupt,  rendered  that  which  relates  to  another  matter.     lb. 

in  his  examination  under  tlie  commission,  And  see  Reg.  v.  Butler,  2  Car.  &  Kir.  221. 

was  not  admissible   in   evidence   against  *  Rex  v.  Fearshire,  1  Leach's  Cr.  Cas. 

him  on  a  subsequent  criminal  charge,  be-  240 ;  Rex  v.  Jacobs,  Id.  347 ;  Irwin's  case, 

cause  it  was  rendered  upon  compulsion.  1  Hayw.  112;  Rex  v.  Bell,  5  C.  &  P.  162; 

But  the  ground  of  this  decision  was  after-  Rex  v.  Read,  1  M.  &  M.  403;  Phillips  v. 

wards  declared  by  the  learned  judge  who  Winburn,  4  C.  &  P.  273  ;  [State  v.  Parish, 

jironounced  it,  to  be  only  this,  that  there  Busbee,   Law,   239.]      If  the   magistrate 

was  no  previous  evidence  of  the  issuing  of  returns,    that  the  prisoner   "declined  to 

tlie  connnission ;  and,  therefore,  no  foun-  say  any  thing,"  parol  evidence  of  state- 

dation  had  been  laid  for  introducing  the  ments  made   l)y  him  in  the  magistrate's 

balance-sheet  at  all.     See  Wheater's  case,  presence,  at  the  time  of  the  examination, 

2  Mood.  Cr.  Cas.  45,  51.  is  not  admissible.     Rex  v.  Walter,  7  C.  & 

'-  Mr.  Joy,  in  his  Treatise  on  Confes-  P.  267.     See  ai^so  Rex  v.  Rivers,  Id.  177; 

sions,  &c.,  pp.  89-92,  237,  dissents  from  this  Regina  v.   Morse  et  al.   8  C.  &  P.  605  ; 

proposition,  so  far  as  regards  the  conclusive  Leach  v.   Simpson,   7  Dowl.  513.     Upon 

character  of  the  presumption ;  which,  he  the  same  principle,  where,  on  a  prehmi- 

thinks,  is  neither  "supported  by  the  au-  nary  hearing  of  a  case,  the  magistrate's 

tliorities,"  nor  "  reconcilable  with  the  ob-  clerk  wrote  down  what  a  witness  said,  but 

ject  with  which  examinations  are  taken."  the  writing  was  not  signed,  and  therefore 

See  .s»/<ra,  §  224,  note.     But  upon  a  careful  was  inadmissible;  oral  evidence  was  held 

review  of  the  authorities,  and  with  defer-  admissible  to  prove  what  the  witness  tes- 

ence  to  the  opinion  of  that  learned  writer,  titled.     Jeans  i;.  Wheedon,  2  M.  &  Rob. 

I  am  constrained  to  leave  the  text  unal-  484. 

tered.     See  infra,  §  275-277.  ^  Hinxman's  case,  1  Leach's  Cr.  Cas. 

3  Rex  V.   Wellcr,  2  Car.  &  Kir.  223.  349,  n. 

"Wliatever  the  prisoner  volimtarily  said,  ^  Rex  i'.  Carty,  McNally's  Evid.  p.  45. 


260  LAW   OF   EVIDENCE.  [PART   II. 

his  examination,  but  not  taken  down  by  the  magistrate,  provided 
it  formed  no  part  of  ihe  judicial  inquiry,  so  as  to  malvc  it  the  duty 
I  of  the  magistrate  to  take  it  dowu.^  So  where  the  prisoner  was 
I  charged  with  several  larcenies,  and  the  magistrate  took  his  con- 
jfession  in  regard  to  the  property  of  A,  but  omitted  to  write  down 
jwliat  he  confessed  as  to  the  goods  of  B,  not  remembering  to  have 
lieard  any  thing  said  res})ecting  them,  it  was  held  that  parol 
i evidence  of  the  latter  confession,  being  precise  and  distinct,  was 
Iproperly  admitted.^ 

§  228.  It  has  already  been  stated,  that  the  signature  of  the 
jyrisoner  is  not  necessary  to  the  admissibility  of  his  examination, 
though  it  is  usually  obtained.  But  where  it  has  been  requested 
agreeably  to  the  usage,  and  is  absolutely  refused  by  the  prisoi^er, 
the  examination  has  been  held  inadmissible,  on  the  ground  that 
it  was  to  be  considered  as  incomplete,  and  not  a  deliberate  and 
distinct  confession.^  Yet  where,  in  a  similar  case,  the  prisoner, 
on  being  required  to  sign  the  document  said,  "  it  is  all  true 
enough ;  but  he  would  rather  decline  signing  it,"  the  examination 
was  held  complete,  and  was  accordingly  admitted.^  And  in  the 
former  ctuse,  which,  however,  is  not  easily  reconcilable  with  those 
statutes,  which  require  nothing  more  than  the  act  of  the  magis- 
trate, though  the  examination  is  excluded,  yet  parol  evidence  of 
what  the  prisoner  voluntarily  said  is  admissible.  For  though,  as 
we  have  previously  observed,^  in  certain  cases  where  the  exami- 
nation is  rejected,  parol  evidence  of  what  was  said  on  the  same 
occasion  is  not  received ;  yet  the  reason  is,  that  in  those  cases  the 
confession  was  not  voluntary ;  whereas,  in  the  case  now  stated, 
the  confession  is  deemed  voluntary,  but  the  examination  only  is 
incomplete.^     And  wherever  the  examination  is  rejected  as  docu- 

^  Moore's  case,  Roscoe's  Crim.  Evid.  the  prisoner  was  on  trial.     But  the  case  is 

45,  per  Parke,  J. ;   Rex  v.  Spilsbury,  7  C.  more  fully  stateil,  and  the  view   of  Mr. 

&  r.  188;  Malony's  case,  Id.  (otiierwise  riiillii)s  dissented  from,  in  "2  Russell  on 

Mulvey's  case,  Joy  on    Confessions,  &c.  Crimes,  pp.  876-878,  note,  by  Mr.  Greaves, 

p.  !238),  per  Jjittledale,  J.     In  Rowland  v.  See  also  Joy  on  Confessions,  pp.  S'.MJo. 
Ashbuy,  Ry.  &  My.  221,  Mr.  Justice  Best  "Rex   v.    Telicote,    2   Stark.   R.  483; 

tw;is  of  opinion,  that  "  upon  di'&r  and  satin-  Bennett's  case,  2  Leach's  Cr.  Cas.  627,  n. ; 

fncton/  eridcncp,  it  would  be  admissible  to  Re.\   n.  Foster,   1  Lewin's   Cr.   Cas.  46 ; 

prove  somethinf^  said  by  a  prisoner,  be-  Rex  )•.  Hirst,  lb. 

yond  what  was  taken  down  by  the  com-  *  Lambe's  case,  2  Leach's  Cr.  Cas.  625. 

mittinf?  ma<iistrate."  ^  jSiipra,  §  225. 

^  Harris's  ca.se,  1  Mood.  Cr.  Cas.  338.         ®  Tiioinas's  case,  2  Leach's  Cr.  Cas. 

See   2   riiil.    Evid.  84,  note,   where   the  727;    Dewliurst's    case,    1    Lewin's    Cr. 

learned   autiior   has  reviewed   this   case,  Cas.  47  ;    Rex    v.   Swatkins,  4   C.  &  P 

and  limited  its  ai)plication  to  confessions  548 ;  Rex  v.  Read,  I  M.  &  M.  403. 
of  other  offences  than  the  one  for  which 


I 

CHAP.  XII.1  OF   CONFESSIONS.  '261  X-  f 

..    ^^^ 

mentary  evidence,  for  informality,  it  may  still  be  used  as  a  writing,  \  ^ 

to  refresh  the  memory  of  the  witness  who  wrote  it,  when  testi-  S 

fying  to  what  the  prisoner  voluntarily  confessed  upon  that  occa-    V-^ 
sion.^  -:  ■ 

§  229.  Though  it  is  necessary  to  the  admissibility  of  a  confession      "  ,  . 
that  it  "should  have  been  voluntarily  made,  that  is,  that  it  should  ,y   t 
have  been  made,  as  before  shown,  without  the  appliances  of.  hope  V,  ^: 
or  fear  from  persons  having  authority ;  yet  it  is  not  necessary/  that 
it  should  have  been  the  prisoner's  own  spontaneous  act.     It  will  be 
received,  though  it  were  induced  by  spiritual  exhortations,  whether      ^    ij 
of  a  clergyman ,2  or  of  any  other  person  ;^  by  a  solemn  promise  of     Vi  ^s^ 
secrecy,  even  confirmed  by  an  oath  ;^  or  by  reason  of  the  prisoner's     >^  ^ 
having  been  made  drunken ;  ^   or  by  a  promise  of  some  collateral     ZSJ 
Imiefit  or  boon,  no  hope  or  favor  being  held  out  in  respect  to  the 
criminal  charge  against  him;^   or  by  any  deception  practised  on     ■      >C 
the  prisoner,  or  false  representation  made  to  him  for  that  purpose,       ; 
provided  tliere  is  no  reason  to  suppose  that  the  inducement  held       '  *^ 
pi>ut  was  calculated  to  produce  anj  mitme  confession^jvlijch 
Imain   point   to   bo  considered.^     So,  a   confession  is  admissible^ 
^ioughTris"ericited'by"(/n('xfA^Hs,  whether  put  to  the  prisoner  by  a 
magistrate,  officer,  or  private  person ;  and  the  form  of  the  question 
is  mimaterial  to  the  admissibility,  even  though  it  assumes  the 
prisoner's  guilt.^     In  all  these  cases  the  evidence  may  be  laid 
loelore  t^e  jury,  however  little  it  may  weigh,  under  the  circum- 

1  Layer's   case,   16   Howell's   St.   Tr.  of  the  confession  itself.     lb.     See  further, 
215;   Rex  v.  Swatkins,  4  C.   &  P.   548,  infra,  §  247. 

and  note  (a) ;  Rex  v.  Tarrant,  6  C.  &  P.  ^  Rex  v.  Wild,  1  Mood.  Cr.  Cas.  452  ; 

182;  Rex  y.  Pressly,  Id.  183 ;  su/)ra,§  90;  Rex  v.   Court,   7   C.  &  P.  486;    Joy  on 

infra,  §  436.  Confessions,  &c.,  pp.  49,  61. 

2  Rex  V.  Gilham,  1  Mood.  Cr.  Cas.  *  Rex  v.  Shaw,  6  C.  &  P.  372 ;  Com- 
186 ;  more  fully  reported  in  Joy  on  Con-  monwealth  v.  Knapp,  9  Pick.  496,  500- 
tessions,&c.,pp.  52-56;  Commonwealth  r.  510.  So,  if  it  was  overheard,  whether 
Drake,  15  Mass.  161.  In  the  Roman  law  said  to  himself  or  to  another.  Rex  v. 
it  is  otherwise ;  penitential  confessions  to  Simons,  Id.  540. 
the  priest  being  encouraged,  for  the  relief  ^  Rex  v.  Spilsbury,  7  C.  &  P.  187. 
of  the  conscience,  and  the  priest  being  ^  Rex  v.  Green,  6  C.  &  P.  655 ;  Rex  v. 
bound  to  secrecy  by  the  peril  of  punish-  Lloyd,  Id.  393.  [  *  State  v.  Wentworth, 
ment.      "  Confessio   coram   sacerdote,  in  37  N.  H.  196.] 

poenitentia  facta,  non  probat  in  judicio ;  '  Rex  v.  Derrington,  2  C.  &  P.  418  ; 

quia   censi'tttr  facta   coram    Deo;    imo,    si  Burley's  case,  2  Stark.  Evid.  12,  n.     See 

sacerdos  eam  enunciat,  incidit  in  poenam."  Commonwealth  v.  Tuckerman,  10  Gray. 

Mascardus,  De  Probat.  vol.  1,  Concl.  377.  173. 

It  was  lawful,  however,  for  the  priest  to  ^  Rex  '■.  "Wild,  1  Mood.  Cr.  Cas.  452 ; 

testify  in  such  cases  to  the  fact  that  the  Rex  v.  Thornton,  Id.  27 ;  Gibney's  case, 

party  had  made  a  penitential  confession  Jebb's  Cr.  Cas.  15 ;  Kerr's  case,  8  C.  & 

to  him,  as  the  Church  requires,  and  that  P.  179.    See  Joy  on  Confessions,  pp.  34-40, 

he  had  enjoined  penance  upon  him  ;  and,  42-44 ;    Arnold's^  case,  8    C.  &   P.   622 ; 

with  the  express  consent  of  the  penitent,  supra,  §  225,  note  (1). 
he  might  lawfully  testify  to  the  substance 


\j 


>l 


262  LAW   OF  EVIDENCE.  [PART   II. 

stances,  and  however  reprcliciisible  may  be  the  mode  in  which,  in 
some  of  them,  it  was  .obtained.    All  persons,  except  counsellors  and' 
attorneys,  are  compellable  at  common  law  to  reveal  what  they  may 
have  heard ;    and  counsellors  and  attorneys  are   excepted,  only 
because  it  is  absolutely  necessary,  for  tlie  sake  of  their  clients,  and 
of  remedial  justice,  that  communications  to  them  should'be  pro- 
tected.^    Neither  is  it  necessary  to  the  admissibility  of  any  confes- 
sion, to  whomsoever  it  may  have  been  made,  that  it  sliould  appear 
that  the  ])risoner  was  ivarned  that  what  he  said  Avould  be  used  Vv'v 
against  liini.     On  the  contrary,  if  the  confession  was  voluntary,  it^ 
is  sufficient,  though  it  should  appear  that  he  was  not  so  warned.'-^  i 
[  *  And  it  is  no  objection  to  the  admissibility  of  confessions  made- 
by  those  accused  of  crime,  that  they  were  made  by  them  while 
under  arrest,  whether  to  the  officer  or  third  }>ersons,  provided 
there   was    no    promise,    threat,    or    other    inducement    resorted 
to.3] 

§  230.  It  has  been  thought,  that  illegal  imprisonment  exerted  such  -,,• 
influence  upon  the  mind  of  tlie  prisoner' as  to  justify  the  inference  ,\ 
that  his  confessions,  made  during  its  continuance,  were  not  volun-  '"  , 
tary ;  and  therefore  they  have  been  rejected.*  But  this  doctrine  V 
cannot  yet  be  considered  as  satisfactorily  established.^  ^^ 

§  231.  The  object  of  all  the  care,  which,  as  we  have  now  seen,  is  ^ 
taken  to  exclude  _  confessions  which  were  not  voluntary,  is  to 
exclude  testimony  not  probably  true.  But  where,  in  consequence  , 
of  the  information  obtained  from  the  prisoner,  the  property  stolen,  or  '^ 
the  instrument  of  the  crime,  or  the  bloody  clothes  of  the  person  jj» 
murdered,  or  a??//  other  material  fact  is  discovered,  it  is  competent  to  ^ 
show  that  such  discovery  was  made  conformably  to  the  information  NT 
given  by  the  prisoner.  The  statement  as  to  his  knowledge  of  the 
])lace  where  the  property  or  other  evidence  was  to  be  found,  being 
tlms  confirmed  by  the  fact,  is  proved  to  be  true,  and  not  to  have 
been  fabricated  in  consequence  of  any  inducement.  It  is  compe-  ' 
tent,  therefore,  to  inquire,  whether  the  prisoner  stated  that  the 
tiling  would  be  found  by  searching  a  particular  place,  and  to  prove 

1  Per  Pattcson,  J.,  in  Rex  v.  Sliaw,  6  »  [*  People  v.  Rogers,  18  N.  Y.  Ct. 

C.  &  P.  372.     Pliysicians  and  clerpynien,     App.  9.] 

by   statutes.      [Infra,   §§    2'17,   248,  and         *  Per   Holroyd,  J.,   in  Ackroyd   and 
notes.]  Warburton's  case,  1  Levvin's  Cr.  Cas.  49. 

-  Gibney's  case,  Jebb's  Cr.  Cas.  15;         ''  Kex  v.  Thornton,  1  Mood.  Cr.  Cas. 
Rex  V.  Magill,  cited  in  McNally's  Evid.     27. 
38  ;  Regina  ?;.  Arnold,  8  C.  &  P.  622 ;  Joy 
on  Confessions,  pp.  45-48. 


ic 


CHAP.  XII.]  OF   CONFESSIONS.  '        263    >4. 

that  it  was  accordingly  so  found  ;  but  it  would  not  be  competent  to 
inquire,  whether  he  confessed  that  he  had  concealed  it  there.^ 
This  limitation  of  the  rule  was  distinctly  laid  down  by  Lord  Eldon, 
who  said,  that  where  the  knowledge  of  any  fact  was  obtained  from 
a  prisoner,  under  such  a  promise  as  excluded  the  confession  itself 
from  being  given  in  evidence,  he  should  direct  an  acquittal ;  unless 
the  fact  itself  proved  would  have  been  sufficient  to  warrant  a 
-conviction,  without  any  confession  leading,  to. ^^  ,       , 

§  232.  If  the  prisoner   himself  produces   the  goods    stolen,   and'V^*^ 
delivers  them  up  to  the  prosecutor,  notwithstanding  it  may  appear       ->' 
that  this  was  done  upon  inducements  to  confess,  Jield  out  by  the 
latter,  there  seems  no   reason  to  reject  the  declarations  of  the 
prisoner,  contemporaneous  with  the  act  of  delivery,  and  explana-     i> 
tory  of  its  character  and  design,  though  they  may  amount  to  a  4  ., 
confession  of  guilt ;  ^  but  whatever  he  may  have  said  at  the  same      v 
time,  not  qualifying  or  explaining  the  act  of  delivery,  is  to   be  f*^ 
rejected.     And  if,  in  consequence  of  the  confession  of  the  prisoner,   V  • 
thus  improperly  induced,  and  of  the  information  by  him  given,  the  tJ  ^j  ^  , 
search  for  the  property  or  person  in  question,  proves  wholly  ineffec-  \  j  ^ 
tual,   no   proof  of  either   will   be   received.      The   confession    is\\'^ 
excluded,  because,  being  made  under  the  influence  of  a  promise,  -^  - 
it  cannot  be  relied  upon ;    and  the  acts  and  information  of  the  v»  ^ 
prisoner,  under  the  same  influence,  not  being  confirmed  by  the  ^'  \, 
finding  of  the  property  or  person,  are  open  to  the  same  olyection.'^'^' 
The  influence  which  may  produce  a  groundless  confession  may  also 
produce  groundless  conduct.* 

§  233.  As  to  the  prisoner's  liability  to  be  affected  by  the  con- 
fessions of  others,  it  may  be  remarked,  in  general,  that  the 
principle  of  the  law  in  civil  and  criminal  cases,  is  the  same.  lu 
civil  cases,  as  we  have  already  seen,^  when  once  the  fact  of  agency 
or  partnership  is  established,  every  act  and  declaration  of  one,  in 
furtherance  of  the  common  business,  and  until  its  completion,  is 
deemed  the  act  of  all.  And  so,  in  cases  of  conspiracy,  riot,  or 
other  crime,  perpetrated  by  several  persons,  when  once  the  con- 
spiracy or  combination  is  established,  the  act  or  declaration  of  one 

1  1  Phil.  Evid.  411 ;  Warickshall's  case,  658 ;  Lockhart's  case,  1  Leach's  Cr.  Cas. 
1  Leach's  Cr.  Cas.  298  ;  Mosey's  case,  Id.     430. 

301,  n. ;  Commonwealth  v.  Knapp,  9  Pick.  ^  Rex  v.  Griffin,  Euss.  &  Ry.  151 ;  Eex 

496,  511 ;  Regina  v.  Gould,  9  C.  &  P.  364 ;  v.  Jones,  Id.  152. 

Eexw.  Harris,  1  Mood.  Cr.  Cas.  338.  *  Rex  v.  Jenkins,  Euss.  &  Ry.  492; 

2  2  East,  P.  C.  657  ;  Harvey's  case.  Id.  Eegina  v.  Hearn,  1  Car.  &  Marsh.  109. 

6  Supra,  §§  112, 113, 114, 174, 176, 177. 


264 


LAW   OF   EVIDENCE. 


[part  it. 


conspirator,  or  accomplice,  in  the  prosecution  of  the  enterprise,  is 
considered  the  act  of  all,  and  is  evidence  against  all.^  Each  is 
deemed  to  assent  to,  or  command  what  is  done  by  any  other,  in 
iirthcrancc  of  the  common  object.^  Thus,  in  an  indictment 
ao-ainst  the  owner  of  a  ship,  for  violation  of  the  statutes  against 
the  slave-trade,  testimony  of  the  declarations  of  the  master,  being 
part  of  the  res  gestce,  connected  with  acts  in  furtherance  of  the 
voyage,  and  within  the  scope  of  his  authority,  as  an  agent  of 
the  owner,  in  the  conduct  of  the  guilty  enterprise,  is  admissible 
against  the  owner.^  But  after  the  common  enterprise  is  at  an  end, 
whether  by  accomplishment  or  abandonment,  is  not  material,  jio 
1)11'  is   |Hn-mitted,  By~any''suFsequenF  a^^^  of  his 

own,  to  [ilT'ct'tlK'  (idici's.  Tlis  confessfon,  therefore,  subsequently 
"uiatlc,  oven  tliuugh  by  ilic  plea  of  guilty,  is  not  admissible  in  evi- 
dence, as  such,  against  any  but  himself.*  If  it  were  made  in  the 
presence  of  another,  and  addressed  to  him,  it  might,  in  certain 
circumstances,  be  receivable,  on  the  ground  of  assent,  or  implied 
admission.  In  fine,  the  declarations  of  a  conspirator  or  accomplice^ 
are  receivable  against  his  leiiows^  "only  when  Jtliey  are  either  in 
tlicmseivos  acts,  or  accompany  and  explain  acts,  for  which  the 
others  are  responsible ;  but  not  when  they  are  in  the  nature  of 
narratives,  descriptions,  or  subsequent  confessions.^ 

§  23-4.  The  same  principle  prevails  in  cases  of  agency.  In 
general,  no  person  is  answerable  criminally  for  the  acts  of  his 
servants  or  agents,  whether  he  be  the  prosecutor  or  the  accused, 
unless  a  criminal  design  is  brought  home  to  him.     The  act  of  the 


^ 


1  So  is  the  Roman  Law.  "  Confessio 
unius  non  probat  in  praejudicium  alterius ; 
quia  alias  esset  in  manu  confitentis  dicere 
quod  vellet,  et  sic  jus  alteri  qu82situni 
aufcrre,  quaiido  onuiino  jure  proliibent; 
—  etiamsi  talis  confitens  esset  omni  ex- 
ceptione  major.  Sed  limitabis,  qnnndo 
inter  jxirtes  conveiiit  parere  confesmoni  et 
(lirto  wiiiis  alterius."  Mascard.  De  Probat. 
Concl.  48(5,  vol.  1,  p.  409. 

-  Per  Story,  J.,  in  United  States  v. 
Gooding,  12  Wheat.  469.  And  see  supra, 
§  111,  and  cases  there  cited.  The  Ameri- 
can Fur  Company  v.  The  United  States, 
2  Peters,  35<S  ;  Conmionwealth  r.  Eherle 
fY  al.,  3  S.  &  U.  '.t;  Wilbur  v.  Strickland, 
1  Kawle,  45H ;  Heitenback  v.  Eeitenback, 
Id.  362;  2  Stark.  Evid.  232-237;  The 
State  V.  Soper,  4  Shepl.  293. 

-^  United  States  v.  Gooding,  12  Wlieat. 
400. 


*  Rex  V.  Turner,  1  Mood.  Cr.  Cas. 
347;  Hex  v.  Appleby,  3  Stark.  R.  33. 
And  see  Melen  v.  Andrews,  1  M.  &  M. 
33G,  per  Parke,  J. ;  Regina  v.  Hinks,  1 
Den.  Cr.  Cas.  84;  1  Phil.  Evid.  199  (9th 
edit.) ;  Regina  v.  Blake,  6  Ad.  &  El.  12(3, 

N.  S. 

6  1  Phil,  on  Evid.  414;  4  Hawk.  P.  C, 
b.  2,  ch.  46,  §  34;  Tong's  case.  Sir  J. 
Kelyng's  R.  18,  5th  Res.  In  a  case  of 
piracy,  where  tlie  persons  who  made  the 
coni'essions  were  not  identilied,  but  the 
evidence  was  only  tliat  .some  did  confess, 
it  was  held  tliat,  though  such  confessions 
could  not  be  applied  to  any  one  of  the 
prisoners,  as  proof  of  his  personal  guilt, 
yet  the  jury  might  consider  them,  so  far 
as  they  went  to  identify  the  jjiratical  ves- 
sel. United  States  v.  Gibcrt.  2  Sumn.  16. 
[  *  State  V.  Thibeau,  30  Vt.  R.  100.] 


CHAP.  XII.]  OF   CONFESSIONS.  265 

agent  or  servant  may  be  shown  in  evidence,  as  proof  that  such  an 
act  was  so  done ;  for  a  fact  must  be  established  by  the  same  evi- 
dence, whether  it  is  to  be  followed  by  a  criminal  or  civil  conse- 
quence ;  but  it  is  a  totally  different  question,  in  the  consideration  of 
criminal,  as  distinguished  from  civil  justice,  how  the  principal  may 
be  affected  by  the  fact,  when  so  established.^  Where  it  was  pro- 
posed to  show  that  an  agent  of  the  prosecutor,  not  called  as  a  wit- 
ness, offered  a  bribe  to  a  witness,  who  also  was  not  called,  the 
evidence  was  held  inadmissible ;  though  the  general  doctrine,  as 
above  stated,  was  recognized.^ 

.  §  235.  It  was  formerly  doubted  whether  the  confesdon  of  the 
prisoner,  indicted  for  high  treason,  could  be  received  in  evidence, 
unless  it  were  made  upon  his  arraignment,  in  open  court,  and  in 
answer  to  the  indictment ;  the  statutes  on  this  subject  requiring 
the  testimony  of  two  witnesses  to  some  overt  act  of  treason.^  But 
it  was  afterwards  settled,  and  it  is  now  agreed,  that  though,  by 
those  statutes,  no  confession  could  operate  conclusively,  and  with- 
out other  proof,  to  comict  the  party  of  treason,  unless  it  were 
judicially  made  in  open  court  upon  the  arraignment ;  yet  that,  in 
all  cases,  the  confession  of  a  criminal  might  be  given  in  evidence 
against  him ;  and  that  in  cases  of  treason,  if  such  confession  be 
proved  by  two  witnesses,  it  is  proper  evidence  to  be  left  to  a  jury 
And  in  regard  to  collateral  facts,  which  do  not  conduce  to  the 
proof  of  any  overt  acts  of  treason,  they  may  be  proved  as  at  com- 
mon law,  by  any  evidence  competent  in  other  criminal  cases. ^ 

1  Ld.  Melville's  case,  29  Howell's  St.  publication."     Eex  v.  Gutch,  1  M.  &  M. 

Tr.  7G4;    The  Queen's  case,  2  B.  &  B.  &33,  437.      See   also    Story  on   Agency, 

306,  307  ;  supra,  §  170.  §§  452,  453,  455;  Rex  v.  Almon,  5  Burr. 

-  The  Queen's  case,  2  B.  &  B.  302,  2686 ;  Rex  v.  Walter,  3  Esp.  21 ;  South- 

306,  307,  308,  309.    To  the  rule,  thus  gene-  wick  v.  Stephens,  10  Johns.  443. 
rally  laid  down,  there  is  an  apparent  ex-  *  Foster's  Disc.  1,  §  8,  pp.  232-244;  1 

ception,  in  the  case  of  the  proprietor  of  a  East's  P.   C.   131,  132,  133.     Under  the 

newspaper,  who  is,  prima  facie,  criminally  Stat.  1  Ed.  VI.  c.  12,  and  5  Ed.  VI.  c.  11, 

responsible  for  any  libel  it  contains,  though  requiring  two  witnesses  to  convict  of  trea- 

inserted  by  his  agent  or  servant  without  son,  it  has  been  held  sufficient,  if  one  wit- 

his  knowledge.    But  Lord  Tenterden  con-  ness  prove   one   overt   act,  and   another 

sidered  this  case  as  falling  strictly  within  prove  another,  if  both  acts  conduce  to  the 

the  principle  of  the  rule;    for  "surely,"  perpetration  of  the  same  species  of  treason 

said   he,    "a  person   who   derives   profit  cliarged  upon  the  prisoner.     Lord  Staf- 

from,  and  who  furnishes  means  for  carry-  ford's  case,  T.  Raym.  407  ;  3  St.  Tr.  204, 

ing  on  the  concern,  and  intrusts  the  con-  205 ;  1  East's  P.  C.  129 ;  1  Burr's  Trial, 

duct  of  the  publication  to  one  whom  he  196. 

selects,  and  in  wliom  he  confides,  may  be         *  Francia's  case,  1  Easf  s  P.  C.  133, 

said  to  cause. to  be  published  what  actu-  134,  135. 

ally  appears,  and  ought  to  be  answerable,         ^  Smith's  case,  Fost.  Disc.  p.  242 ;  1 

though  you  cannot  show  that  he  was  in-  East's  P.  C.  130.     See  infra,  §§  254,  255. 
dividually  concerned    in    tlie    particular 

VOL.  I.  23 


266  LAW   OF   EVIDENCE.  [PART   II. 


CHAPTER    XIII. 

OF   EVIDENCE  EXCLUDED   FROM   PUBLIC   POLICY. 

[*§  23G.  Evidence  sometimes  rejected  upon  •,m)mKls  of  policy. 

237.  This  eml)races  communications  between  attorney  or  counsel  and  client. 

238.  This  is  done  out  of  regard  to  the  rights  of  clients  and  the  course  of  justice. 

239.  The  privilege  extends  to  all  grades  in  the  profession,  their  agents,  interpre- 

ters, and  personal  representatives. 
239a.  Summary  of  the  recent  American  cases. 

240.  It  embraces  all  legal  proceedings,  in  esse,  or  in  contemplation. 

240a.  Communications  after  dispute  privileged,  but  not  those  in  matters  wholly 
distinct  and  anterior. 

241.  Otlier  incidents  of  the  privilege.     Counsel  may  prove  the  existence,  but  not 

contents,  of  deeds. 

242.  The  privilege  only  attaches  to  focts  obtained  solely  through  professional 

confidence. 

243.  The  obligation  of  secrecy  is  perpetual. 

244r-24^.  Instances  where  counsel  may  testify  to  facts  learned  in  the  course  of 
professional  employment  and  otherwise. 

246.  The  court  will  inspect  docmneuts  to  determine  whether  they  shaU  be  pro- 

duced.    Sed  qmere. 

247.  Christian  ministers  not  privileged  to  withhold  confidences. 

248.  Nor  is  a  physician,  or  agent,  or  steward  so  privileged. 

249.  Judges,  jurors,  and  arbitrators  not  bound  to  disclose  the  ground  of  their 

judgments. 

250.  State  secrets,  and  of  the  detective  police,  are  privileged. 

251.  This  will  embrace  communications  to  the  President,  Governors,  and  other 

high  officers  of  stiite. 

252.  Grand  jurors  and  other  officers  required  to  keep  proceedings  secret. 
252«.  Petit  jurors  not  allowed  to  disclose  what  passes  in  jury -room. 

253.  Facts  offensive  to  public  decency  not  allowed  to  be  proved,  except  from 

strict  necessity. 

254.  Confidential  communications  between  husband  and  wife  held  inviolable. 
254a.  Papers  illegally  obtained  sometimes  allowed  to  be  used  in  evidence.] 

§  236.  There  are  some  kinds  of  evidence  which  the  law  ex- 
cludes, or  dispenses  with,  on  grounds  of  public  policy ;  because 
greater  mischiefs  would  properly  result  from  requiring  or  per- 
mitting its  admission,  than  from  wholly  rejecting  it.  The  prin- 
ciple of  this  rule  of  the  law  has  respect,  in  some  cases,  to  the 
person  testifying,  and  in  others,  to  the  matters  concerning  which 
lie  is  interrogated ;  thus  including  the  case  of  the  party  himself, 


CHAP.  XIII.]       EVIDENCE   EXCLUDED    FROM   PUBLIC    POLICY.  267 

and  that  of  the  husband  or  wife  of  the  party,  on  the  one  hand,  and 
on  the  otlier,  the  subject  of  professional  communications,  aivards, 
secrets  of  state,  and  some  others.  The  two  former  of  these  belong 
more  properly  to  the  head  of  the  Competency  of  witnesses,  under 
which  they  will  accordingly  be  hereafter  treated. ^  The  latter  we 
shall  now  proceed  briefly  to  consider. 

§  237.  And  in  the  first  place,  in  regard  to  2^rofessio7ial  commu- 
nications, the  reason  of  public  policy,  which  excludes  them,  applies 
solely,  as  we  shall  presently  show,  to  those  between  a  client  and 
his  legal  adviser ;  and  the  rule  is  clear  and  well  settled,  that 
the  confidential  counsellor,  solicitor,  or  attorney,  of  the  party,  cannot 
be  compelled  to  disclose  papers  delivered,  or  communications 
made  to  him,  or  letters  or  entries  mad^e  by  him,  in  that  capacity .^ 
"  This  protection,"  said  Lord  Chancellor  Brougham,  "  is  not  quali- 
fied by  any  reference  to  proceedings  pending,  or  in  contemplation. 
If,  touching  matters  that  come  within  the  ordinary  scope  of  profes- 
sional employment,  they  receive  a  communication  in  their  pro- 
fessional capacity,  either  from  a  client,  or  on  his  account  and  for 
his  benefit,  in  the  transaction  of  his  business,  or,  which  amounts 
to  the  same  thing,  if  they  commit  to  paper  in  the  course  of  their 
employment  on  his  behalf,  matters  which  they  know  only  through 
their  professional  relation  to  the  client,  they  are  not  only  justified 
in  withholding  such  matters,  but  bound  to  withhold  them,  and  will 
not  be  compelled  to  disclose  the  information,  or  produce  the  papers, 
in  any  court  of  law  or  equity,  either  as  party  or  as  witness."  ^ 

§  238.  "  The  foundation  of  this  rule,"  he  adds,  "  is  not  on 
account  of  any  particular  importance  which  the  law  attributes 

1  [Infra,]  §  326-429.  Abr.  Evid.  B.  a ;  Wilson  v.  Rastall,  4  T. 

2  In  Greenough  v.  Gaskell,  1  My.  &  K.  R.  753 ;  Rex  r.  Withers,  2  Carapb.  578 ; 
101.  In  this  decision,  the  Lord  Cliancel-  Wilson  v.  Troup,  7  Johns.  Ch.  25;  2 
lor  was  assisted  by  consultation  with  Lord  Cowen,  195 ;  Mills  v.  Oddy,  6  C.  &  P. 
Lyndhurst,  Tindal,  C.  J.,  and  Parke,  J.,  728;  Anon.  8  Mass.  370;  Walker  v. 
4  B.  &  Ad.  870.  And  it  is  mentioned,  as  Wildman,  6  Madd.  R.  47 ;  Story's  Eq. 
one  in  which  all  the  authorities  have  been  PI.  458-461 ;  Jackson  v.  Burtis,  14  Johns, 
reviewed,  in  2  M.  &  W.  100,  per  Lord  391 ;  Foster  v.  Hall,  12  Pick.  89 ;  Chu-ac 
Abinger,  and  is  cited  in  Russell  v.  Jack-  v.  Reinicker,  11  Wheat.  295 ;  Rex  v. 
son,  15  Jur.  1117,  as  settling  the  law  on  Shaw,  6  C.  &  P.  372;  Granger  v.  War- 
this  subject.  See  also,  16  Jur.  30,  41-43,  rington,  3  Gilra.  299;  Wheeler  v.  Hill,  4 
where  the  cases  on  this  subject  are  re-  Shepl.  329. 

viewed.      The  earliest  reported  case   on  ^  Greenough  v.  Gaskell,  1  IMy.  &  K. 

this  subject  is  that  of  Berd  v.  Lovelace,  102,  103.     The  privilege  is  held  to  extend 

19  EUz.,  in  chancery,  Gary's  R.  88.      See  to  every  communication  made  by  a  client 

also  Austen  v.  Vesey,  Id.  89;  Kelway  v.  to   his   attorney,   though   made   under   a 

Kelway,  Id.  127 ;  Dennis  v.  Codrington,  mistaken  belief  of  its  being  necessary  to 

Id.  143 ;  all  whicli  are  stated  at  large  by  his  case.     Cleave  v.  Jones,  8  Eng.  Law  & 

Mr.  Metcalf,  in  his  notes  to  2  Stark.  Evid.  Eq.  R.  554,  per  Martin,  B.    And  see  -tUkin 

395  (1st  Am.  edit.).      See  also  12  Viu.  r.  lulburue,  14  Shepl.  252. 


208 


LAW   OF   EVIDENCE. 


[part  II. 


to  the  business  of  legal  professors,  or  any  particular  disposition  to 
afford  them  protection.  But  it  is  out  of  regard  to  the  interests 
of  justice,  which  cannot  be  ui)holden,  and  to  the  administra- 
tion of  justice,  which  cannot  go  on,  without  the  aid  of  men  skilled 
in  jurisprudence,  in  the  practice  of  the  courts,  and  in  those  matters 
affecting  rights  and  obligations,  which  form  the  subject  of  all 
judicial  proceedings."  ^  If  such  communications  were  not  pro- 
tected, no  man,  as  the  same  learned  judge  remarked  in  another 
case,  would  dare  to  consult  a  professional  adviser,  with  a  view  to 
his  defence,  or  to  the  enforcement  of  his  rights;  and  no  man 
could  safely  come  into  a  court,  either  to  obtain  redress,  or  to 
defend  himself.^  ^ 

§  239.  In  regard  to  the  persons,  to  whom  the  commnnications  ^ 
must  have  been  made,  in  order  to  be  thus  protected,  they  musij^ 
have  been  made  to  the  counsel,  attorney,  or  solicitor,  acting,  fon  ^ 
the  time  being,  in  the  character  of  legal  adviser.^    For  the  jeason  ^ 


k      1  ["  It  is  to  be  remembered  whenever 
;  a  question  of  this  kind  arises,  that  cora- 
j  munications  to  attorneys  and  counsel  are 
;  not  protected  from  disclosure  in  coiu't  for 
the  reason  that  they  are  made  confiden- 
.  tially ;    for  no  siicli   protection    is    given 
to  confidential  communications  made  to 
members  of  other  professions.    '  The  prin- 
ciple of  the  rule,  which  applies  to  attor- 
neys  and   counsel,'   says    Chief    Justice 
Sliaw,  in  llatton  v.   Kobinson,   14  Pick. 
A'1'1,  '  is,  that  so   numerous   and  complex 
are  the  laws  hy  which  the  rights  and  du- 
ties of  citizens  are  governed,  so  important 
is  it  they  sliould  be  permitted  to   avail 
'themselves  of  the  superior  skill  and  learn- 
ing of  those  who  are  sanctioned  hy  the 
law  as  its  ministers  and  expoimders,  both 
in  ascertaining  their  rights  in  the  country, 
and    nuiintaining    them    most    safely   in 
( courts,    without    publishing    those    facts 
j  which  they  have  a  right  to  keep  secret, 
'  but  which  must  be  disclosed  to  a  legal 
j  adviser  and  advocate  to  enable  him  suc- 
cessfully to  i)erform  the  duties  of  his  office, 
tluit  the  law  has  considered  it  the  wisest 
policy  to  encourage  and  sustain  this  confi- 
dence, by  recjuiring  that  on  such  facts  the 
mouth  of  the  attorney  shall  be  for  ever 
sealed.' "      By  Metcalf,  J.,  in  Barnes  v. 
Harris,  7  Cush.  576,  578.] 

'^  Bolton  V.  The  Corporation  of  Liver- 
pool, 1  My.  &  K.  94,  95.  "This  rule 
seems  to  be  correlative  with  that  which 
governs  tlie  sunnnary  jurisiliction  of  the 
courts  over  attorneys.  In  Ex  jxirte  Aiken 
(4  B.  &  Aid.  49 ;  see  also  Ex  parte  Yeat- 


man,  4  Dowl.  P.  C.  309),  that  rule  is  laid -*r 
down  thus  :  — '  Where  an  attorney  is  em-  '* 
ployed  in  a  matter,  wholly  unconnected  ^ 
with  his  professional  character,  the  court  * 
will  not  interfere  in  a  summary  way  to 


compel  him  to  execute  faithfully  the  trust   ?*n,^ 
reposed  in  him.     But  where  the  employ-^  v« 
ment  is  so  connected  with  his  professional    J 
character  as  to  afford  a  presumption  that    A 
his  character  formed  the  ground  of  hisi^  1 
emj)loymeut  by  the  client,  there  the  court  "^ 
will  exercise  this  jurisdiction.'     So,  where     w 
the  communication  made  relates  to  a  cir-   >j^,„^ 
cumstance  so  connected  with  the  employ-    ^., 
ment  as, an  attorney,  that  the  character   riiV 
formed  the  ground  of  the  comnnmication,   .    C| 
it  is  privileged  from  disclosure."     Per  Al-  j 

derson,  J.,  in  Tirquand  v.  Kniglit,  2  M.  &  ^    | 
W.   101.      The  Roman  Law  rejected  the 
evidence  of  the  procurator  and  the  adyo-    S) 
cate,  in  nearly  the  same  cases  in  wliicli 
the   conunon   law   holds   them    incompe- 
tent to  testily ;  btit  not  for  the  same  rea-   ^ 
sons;    the   latter   regMnling   the    generakv 
interest  of  the  connnunity,  as  stated  in^^     i 
the  text,  while  the  former  seems  to  con- 
sider them  as  not  credible,  because  of  the  yj 
identity    of  their   interest,  opinions,  and  A 
prejudices,    with   those   of   their  clients,    f 
Mascard.  de  Probat,  vol.  I,  Concl.  06,  vol."^*^* 
3,  Concl.  1239;  P.  Farinacii  Opera,  tom.f' 
2,  tit.  6,  Quffist.  60,  Illat.  5,  6. 

'■^  If  the  party  has  been  requested  toi  ^^ 
as  solicitor,  and  the  communication  is    y 


act 


made  under  the  impression  that  the  re- 
quest has  been  acceded  to,  it  is  privileged- 
Smith  0.  Fell,  2  Curt.  667;  [Sargent  v 


^ 


CHAP.  XIII.]       EVIDENCE   EXCLUDED    FROM    PUBLIC    POLICY.  269 

of  the  rule,  having  respect  solely  to  the  free  and  unembarrassed 
administration  of  justice,  and  to  security  in  the  enjoyment  of  civil 
rights,  does  not  extend  to  things  confidentially  communicated  to 
other  persons,  nor  even  to  those  which  come  to  the  knowledge  of 
counsel,  when  not  standing  in  tliat  relation  to  the  party.  Whether 
he  be  called  as  a"wilhcss,  or  be  made  defendant,  and  a  discovery 
sought  from  him,  as  such,  by  bill  in  chancery,  whatever  he  has 
learned,  as  counsel,  solicitor,  or  attorney,  he  is  not  obliged  nor 
permitted  to  disclose.^  And  this  protection  extends  also  to  all 
the  necessary  organs  of  communication  between  the  attorney  and 
his  client;  an  interpreter'^  and  an  agent^  being  considered  as 
standing  in  precisely  the  same  situation  as  the  attorney  himself, 
and  under  the  same  obligation  of  secrecy.  It  extends  also  to 
a  case  submitted  to  counsel  in  a  foreign  country,  and  his  opinion 
thereon.*  It  was  formerly  thought  that  an  attorney' a  or  a  barris- 
ter's clerk  was  not  within  the  reason  and  exigency  of  the  rule ; 
but  it  is  now  considered  otherwise,  from  the  necessity  they  are 
under  to  employ  clerks,  being  unable  to  transact  all  their  business 
in  person ;  and  accordingly  clerks  are  not  compellable  to  disclose 
facts,  coming  to  their  knowledge  in  the  course  of  their  employment 
in  that  capacity,  to  which  the  attorney  or  barrister  himself  could 
not  be  interrogated.^  And  as  the  privilege  is  not  personal  to  the  " 
attorney,  but  is  a  rule  of  law,  for  the  protection  of  the  client, 
the  executor  of  the  attorney  seems  to  be  within-  the  rule,  in  regard 
to  papers  coming  to  his  hands,  as  the  personal  representative  of 
the  attorney.*^ 

Hampden,  38  Maine,  581 ;  McLellan  v.  Best,  J.,  cited  and  approved  in  12  Pick. 
Lougtellow,  32  lb.  494.]  See,  as  to  con-  93 ;  Rex  v.  Upper  Boddington,  8  Dow.  & 
sultatiou  by  tlie  party's  wife,  Reg.  v.  Far-  Ry.  726,  per  Bayley,  J.  ;  Foote  v.  Hayne, 
ley,  2  Car.  &  Kir.  313.  One  who  is  merely  1  C.  &  P.  545,  per  Abbott,  C.  J. ;  R.  &  M. 
a  real  estate  broker,  agent,  and  conveyan-  165,  s.  c. ;  Jackson  v.  French,  3  Wend, 
cer,  is  not  a  legal  adviser.  Matthews's  337;  Power  u.  Kent,  1  Cowen,  211  ;  Bow- 
Estate,  4  Amer.  Law  J.  356,  n.  s.  man  v.  Norton,  5  C.  &  P.  177;  Shore  v. 

1  Greenough  v.   Gaskell,  1  My.  &  K.  Bedford,  5  M.  &  Gr.  271 ;  Jardine  r.  Siier- 

95;  Wilson  ;'.  Rastall,  4  T.  R.  753.  idan,  2  C.  &  K.  24;  [*  Sibley  v.  Waffle, 

■^  Du  Barre  t'.  Livette,  Peake's  Cas.  77,  16  N.  Y.   Ct.  App.  180;    Landsberger  v. 

explained   in   4    T.    R.    756 ;    Jackson  v.  Gorham,  5  Cal.  450.]     [Communications 

French,  3  Wend.  337  ;  Andrews  v.  Solo-  made  while  seeking  legal  advice  in  a  con- 

mon,  1  Pet.  C.  C.  R.  356 ;  Parker  v.  Car-  saltation  with  a  student  at  law  in  an  attor- 

ter,  4  Munf.  273.  ney's  office,  he  not  being   the  agent  or 

*  Perkins  v.  Hawkshaw,  2  Stark.  R.  clerk  of  the  attorney  for  any  purpose,  are 
239  ;  Tait  on  Evid.  385 ;  Bunbury  v.  Bun-  not  protected.  Barnes  v.  Harris,  7  Cush. 
bury,  2  Beav.  173  ;  Steele  v.  Stewart,  1  576,  578.  See  also  Holman  v.  Kimball,  22 
Phil.  Ch.  R.  471  ;   Carpniael  v.  Powis,  1  Verm.  555. 

Phil.  Ch.  R.  687 ;  9  Beav.  16,  s.  c.  "^  Fenwick  v.  Reed,  1  Meriv.  114,  120, 

*  Bunbur}'  r.  Bunbury,  2  Beav.  173.         arg. 
s  Taylor  v.  Foster,  2  C.  &  P.  195,  per 

23* 


270  LAW   OF   EVIDENCE.  [PART   II. 

[*§  2.j0a.  The  decisions  upon  tliis   point   are  very  numerous 
in  the  American  States.     It  seems  indispensable  to  tlie  existence 
of  the  privilege,  that  the  relation  of  counsel  or  attorney  and  client 
should  exist,  and  that  the  communication  l)e  made  in  faith  of  the 
relation.     And  tlien  the  privilege  of  secrecy  only  extends  to  the 
parties  to  the  relation  and  their  necessary  agents  and  assistants. 
Honce  the  privilege  does  not  attach,  if  one  is  accidentally  present ;  ^ 
or  casuaUy  overhears  the  conversation  ;  2  or  if  the  person  be  not  _ 
a  member  of  the  profession,  although  suipposed  tn  h^  sn  hv  thft 
client:-^  or  if  he  was  acting  as  a  mere  scrivener  although  ot  the 
legal  profession.*     And  the  privilege  against  disclosure  extends  to 
the  client,  as  much,  and  to  the  same  extent,  as  to  his  professional 
adviser.5     Hence  counsel  may  be  compelled  to  produce  any  paper 
which  the  client  might  be  required  to  do.«    "And  facts^piptflg  to 
the   knowledge   of    counsel,   without   comniunication   from ,  tlicir 
clients,  by  being  present  merely,  when  a  legal  document,  is  ..exe- 
cuted,^ are  not  i.rivilegcd.     So  also,  that  the   testator  was   too 
imbecile  to  make  roinuninieations  to  counsel,  when  they  met,  is 
not  a  privileged  fact.^     So  communications  made  by  the  trustee 
to  counsel,  in  regard  to  the  trust,  are  not  privileged  from  being 
proved  by  the  counsel,  in-  a  suit  between  the  cestui  que  trust  and 
the  trustee  affecting  the  trust,^  or  when  made  by  a  nominal  party, 
^to  a  professional  person,  but  not  made  professionally.^"     But  it  is 
not  indispensable  the  communication  should  be  made  after  the"^ 
actual  retainer,  provided  it  be  made  in  confidence   of  the   pro- 
fessional character,  and  with   a  bond  fide   purpose   of  obtaining 
professional  aid  and  direction.^!     But  a  communication  made  to 
counsel  by  two  defendants  is  not  privileged  from  disclosure  in 
a  subsequent  suit  between  the  two.^^     Counsel  are  not  privileged 
from  disclosing  facts  tending  to  establish  a  fraudulent  combination 
between  himself  and  his  client,  in  order  to  prevent  the  court  from 
compelling  the  production  of  imi)ortant   papers,^^   since   neither 
counsel  or  client  have  any  legal  right  to  resort  to  any  but  legal 
means  for  obtaining  a  decision  in  their  favor.     And  it  is  upon 

1  [*  Goddard  v.  Gardner,  28  Conn.  172.  ^  Patten  v.  Moor,  9  Foster,  IG3. 

2  Hoy  ;;.  Morris,  13  Gray,  519.  ^  Daniel  v.  Daniel,  39  I'enn.   St.  191. 
8  Sample  o.  Frost,  10  Iowa,  266.                     »  Shean  v.  Pliilips,  1  F.  &  F.  449. 

*  De  Wolf  V.  Strader,  26  111.  22-5 ;  Bo-  1°  Allen  v.  Harrison,  30  Vt.  219 ;  Marsh 

rum  V.  Fouts,  15  Ind.  50 ;  Coon  v.  Swan,  v.  Howe,  36  Barb.  649. 

30  Vt.  6.  1^  Sargent  v.  Hampden,  38  Me.  581. 

5  Heinenway  v.  Smith,  28  Vt.  701.  ^-  Kice  v.  Rice,  14  B.  Mon.  417. 

0  AiKlrews  r.  Oliio  and  Miss.  II.  11.  Co.,  i"  People  v.  SheritI"  of  New  York,  29 

14  Ind.  169 ;  Durkee  i-.  Lelaud,  4  Vt.  612.  Barb.  622. 


CHAP.  XIII.]      EVIDENCE   EXCLUDED   FROM    PUBLIC   POLICY.  271 

the  same  ground  that  counsel  have  been  held  not  privileged  from 
disclosing  the  fact  of  a  payment  made  to  the  client,  and  commu- 
nicated by  him  to  the  attorney,  for  the  purpose  of  having  the 
application  made,  the  client  having  deceased,  since  this  is  not  in 
any  sense  a  professional  conridcncc.^J 

§  240.  This  protection  extends  to  every  communication  which 
the  client  makes  to  his  legal  adviser,  for  the  jyui'jjose  ofprofessional 
advice  or  aid,  upon  the  sulycct  of  his  rights  and  liabilities.^  Nor 
is  it  iicicssaiv  tli.ll  any  judicial  proceedings  in  particular  should 
have  been  commenced  or  contemplated  ;  it  is  enough  if  the  matter 
in  hand,  like  every  other  human  transaction,  may,  by  possibility, 
become  the  subject  of  judicial  inquiry.  "  If,"  said  Lord  Chan- 
cellor Brougham,  "  the  privilege  were  confined  to  communications 
connected  with  suits  begun,  or  ijitended,  or  expected,  or  appre- 
hended, no  one  could  safely  adopt  such  precautions,  as  might 
eventually  render  any  proceedings  successful,  or  all  proceedings 
superfluous."  ^  Whether  the  party  himself  can  be  compelled,  by 
a  bill  in  chancery,  to  produce  a  case  which  he  has  laid  before 
counsel,  with  the  opinion  given  thereon,  is  not  perfectly  clear. 
At  one  time  it  was  held  by  the  House  of  Lords,  that  he  might  be 
compelled  to  produce  the  case  which  he  had  sent,  but  not  the 
opinion  which  he  had  received.*  This  decision,  however,  was  not 
satisfactory  ;  and  though  it  was  silently  followed  in  one  case,^  and 
reluctantly  submitted  to  in  another,^  yet  its  principle  has  since 
been  ably  controverted  and  refuted.'^      The  great  object  of  the 

1  [*  Clark  r.  Richards,  3  E.  D.  Smith,  this   subject  are  fully   reviewed   by   the 

89.1  learned  Chief  Justice ;  Doe  v.  Harris,  5 

^  Tliis  general  rule  is  limited  to  com-  C.  &  P.  592;  Walker  i-.  Wildman,  6  Madd. 

munications  having  a  lawful  object ;  for  if  R.  47.     There  are  some  decisions  wliich 

the  purpose  contemplated  be  a  violation  require  that  a  suit  be  eitlier  pending  or  an- 

of  law,  it  has  been  deemed  not  to  be  with-  ticipated.     See  Williams  r.  Muudie,  Ry.  & 

in   the    rule    of   privileged    communica-  M.  34;  Broad  i-.  Pitt,  8  C.  &  P.  518 ;  t>uf- 

tions ;  because  it  is  not  a  solicitor's  duty  fin  v.  Smith,  Peake's  Cas.  108.    But  these 

to  contrive  fraud,  or  to  advise  his  client  as  are  now  overruled.    See  Pearse  v.  Pearse, 

to  the  means  of  evading  the  law.     Russell  11  Jur.  52  ;  1  De  Gex  &  Smale,  12  s.  c. 

V.  Jackson,  15  Jur.  1117;  Bank  of  Utica  r.  The  law  of  Scotland  is  the  same  in  this 

Mersereau,  3  Barb.  Ch.  R.  528.  matter  as  that  of  England.    Tait  onEvid. 

3  1   M.   &  K.  102,  103  ;    Carpmael  v.  384. 

Powis,  9  Beav.  16;  1  Phillips,  687;  Pen-  *  RadcliflTer.  Fursman,  2Bro.  P.  C.  514. 

ruddock  v.  Hammond,  11  Beav.  59.     See  ^  Preston  v.  Carr,  1  Y.  &  Jer.  175. 

also  the  observations  of  the  learned  judges,  ®  Newton  v.  Beresford,  1  Y'ou.  376. 

in  Cromack  v.  Ileathcote,  2  Brod.  &  B.  4,  ^  In  Bolton  v.  Corp.  of  Liverpool,  1  My. 

to  the  same  effect ;  Gresley's  Evid.  32,  33 ;  &  K.  88,  per  Ld.  Chancellor  Brougham ; 

Story's  Eq.  Pi.  §600;  Rloore  v.  Terrell,  and  in  Pearse  v.  Pearse,  11  Jur.   52,  by 

4  B.  &  Ad.  870';    Beltzhoover  v.  Black-  Kniglit  Bruce,   V.  C.      In  the  following 

stock,  3  Watts,  20 ;  Taylor  v.  Blacklow,  3  observations  of  this  learned  judge,  we  liave 

Bing.  N.  c.  235 ;  Foster  v.  Hall,  12  Pick,  the  view  at  present  taken  of  this  vexed 

89,  92,  99,  where  the  Enghsh  decisions  on  question  in  England.     "  That  cases  laid 


272 


LAW   OF   EVIDENCE. 


[part  II. 


rule  seems  plainly  to  require  that  the  entire  professional  inter-' 
course  between  client  and  attorney,  whatever  it  may  have  con- 
sisted in,  should  ho  protected  by  profound  secrecy. ^ 


before  counsel,  on  behalf  of  a  client,  stand 
ii])on  tlie  same  footinjj  as  other  profession- 
al conununications  from  the  client  to  the 
counsel  and  solicitor,  or  to  either  of  tliern, 
may,  1  sujtpose,  be  assumed  ;  and  that,  as 
far  as  any  discovery  by  the  solicitor  or 
counsel  is  concerned,  the  question  of  the 
existence  or  non-existence  of  any  suit, 
claim,  or  dispute,  is  immaterial  —  the  law 
providing?  for  the  client's  protection  in 
each  state  of  circumstances,  and  in  each 
equally,  is,  I  suppose,  not  a  disputable 
point.  I  suppose  Cromack  v.  Heathcote, 
(2  Bred.   &  -Bing.  4,)  to  be  now  univer- 


tions  made  by  the  late  Lord  Chief  Baron, 
in  Knight  v.  Lord  Watcrford  (2  Y.  &  C. 
4U,  41), — observations,  I  need  not   say,    xj 
well  worthy  of  attention,  —  I  confess  my-    ^ 
self  at  a  loss  to  perceive  any  substantial 
dillerence,  in  point  of  reason,  or  principle, 
or  convenience,  between  the  liability  of    ^ 
the  client  and  that  of  his  counsel  or  soli-    ^ 
citor,  to  disclose  the  client's  coinmunica-    \ 
tions   made   in   confidence   professionally     ^ 
to  either.     True,  the  client  is  or  may  be  I  4 
compellable  to  disclose  all,  that,  before  he  I  A 
consulted    the    counsel    or    solicitor,    hel  ^ 
knew,  believed,    or   had   seen  or  heard  ;r 


sally  acceded  to,  and  the  doctrine  of  this  but  the  question  is  not,  I  apprehend,  one 

court   to  have    been   correctly  stated  by  as  to  the  greater  or  less    probability  of 

Lord  Lyndluu-st.  in   Herring   v.  Clobery  more  or  less  damage.     The  question  is,  I 

(1  Phil."  91),  when  he  said,  '  I  lay  down  suppose,  one  of  principle,  —  onethatought 

this  rule  with  reference  to  this  cause,  that,  to  be  decided  according  to  certain  rules 

where  an  attorney  is  employed  by  a  client  of  jurisprudence  ;  nor  is  the  exemption  of 

professionally  to  transact  professional  busi-  the  solicitor  or  counsel  from  compulsory 

ness,  all  the  "communications  tliat  pass  be-  discovery   confined   to   advice    given,    or 


tween  the  client  and  the  attorney,  in  the 
course  and  for  the  purp(jse  of  tliat  busi- 
ness, are  privileged  coranmnications,  and 
that  the  privilege  is  the  privilege  of  the 
client,  and  not  of  the  attorney.'  This  I 
take  to  be  not  a  peculiar,  but  a  general 
rule  of  jurisprudence.  The  civil  law,  in- 
deed, considered  the  advocate  and  client 
80  identified  or  bound  together,  that  the 
advocate  was,  I  beUeve,  generally  not  al- 
lowed to  be  a  witness  for  the  client.  '  Ne 
patroni  in  causa,  cui  patrociniuni  prccstiterunt, 
testimonium  dicant,'  sa3's  the  Digest  (Dig. 
lib.  22,  tit.  5,  1.  25).  An  old  jurist,  indeed, 
appears  to  have  thought,  tiiat,  by  putting 
an  advocate  to  the  torture,  he  might  have 
made  a  good  witness  for  his  client ;  but 
this  seems  not  to  have  met  with  general 
approbation.  Professors  of  the  law,  prob- 
ably, were  not  dis[)osed  to  encourage  the 
dogma  practically.  Voet  puts  the  com- 
munications between  a  client  and  an  ad- 
vocate on  the  footing  of  those  between  a 
penitent  and  his  priest.  He  says  :  '  Non 
etiam  adcocatus  aut  procurator  in  ed  causa, 
cui  patrocinium  prcBstitit  aut  procurationem, 
idoneus  testis  est,  sive  pro  cliente  sive  contra 


opmions  stated.  It  extends  to  facts  com- 
municated by  the  client.  Lord  Kldon  has 
said  (I'J  Ves.  2t)7)  :  'The  ease  might 
easily  be  put,  that  a  most  honest  man,  so 
changing  his  situation,  might  communicate 
a  fact,  appearing  to  him  to  have  no  con- 
nection with  the  case,  anil  j'et  the  whole 
title  of  his  former  client  might  depend  on 
it.  Though  Sir  John  Strange's  o]>inion 
was,  that  an  attorney  might,  if  he  pleased, 
give  evidence  of  his  client's  secrets,  I 
take  it  to  be  clear,  that  no  court  would 
permit  him  to  give  such  evidence,  or 
would  have  any  difficulty,  if  a  solicitor, 
voluntarily  changing  his  situation,  was,  in 
his  new  cliaracter,  proceeding  to  commu- 
nicate a  material  tact.  A  short  way  of 
preventing  him  would  be,  by  striking  him 
off  the  roll.'  But  as  to  damage  :  a  man,-'' 
having  laid  a  case  before  counsel,  may  die, 
leaving  all  the  rest  of  mankind  ignorant 
of  a  blot  on  his  title  stated  in  the  case, 
and  not  discoverable  by  any  other  means. 
The  whole  fortunes  of  his  family  may, 
turn  on  the  question,  whether  the  casi  _ 
shall  be  discovered,  and  may  be  subverted' 
by   its   discovery.      jVgain,  the   client 


i 


earn  producatur;  saltern  non  ad  id,  ut  pandere  certainly  exemjjted   from  liability  to  dis- 

cogo-etur  ea,  quiz  non  aliunde  quam  ex  revela-  cover  communications    between    himself 

tione  clientis,  comperta  hubet ;  eo  modo,  quo,  and  his  counsel  or  solicitor  after  litigation 

et  sacerdoti  remlare  fia  quce  ex  auriculari  didi-  commenced,  or  after  the  commencement 

cit  confessione,   nefas  ejit.'     Now,  whether  of  a  dispute  ending  in  litigation  ;  at  least, 

laying  or  not  laying  stress  on  the  observa-  if  they  relate  to  the  dispute,  or  matter  in 

1  Thus,  what  the  attorney  .saw,  namely,  the  destruction  of  an  instrument,  was  held 
privileged.     Kobson  v.  Kemp,  5  Esp.  52. 


CHAP.  XIII.]      EVIDENCE   EXCLUDED    FROM    PUBLIC    POLICY. 


273 


§  240a.  In  regard  to  the  obligation  of  the  party  to  discover  and 
produce  the  opinion  of  counsel,  various  distinctions  have  been 
attempted  to  be  set  up,  in  favor  of  a  discovery  of  cunnnunications 


dispute.  Upon  this  I  need  scarcely  refer 
to  a  class  of  authorities,  to  which  Hughes 
V.  Eiddulpii  (4  Iluss.  160),  Nias  v.  >>ortii- 
ern  and  Eastern  Railway  Conii)any  (3 
Myl.  &  Cr.  355),  before  the  present  Lord 
Chancellor,  in  his  former  cliancellorship, 
and  liohnes  v.  liadileley  (1  Ir'hil.  47G), 
decided  by  Lord  Lyndiiurst,  belong.  But 
what,  for  the  purpose  of  discovery,  is  the 
distinction  in  [)oint  of  reason,  or  principle, 
or  justice,  or  convenience,  between  such 
communications  and  those  which  differ 
from  them  only  in  this,  that  they  precede, 
instead  of  foUowinc;,  tlie  actual  arisini;',  not 
of  a  cause  for  dispute,  but  of  a  dispute,  I 
have  never  hitherto  been  able  to  perceive. 
A  man  is  in  possession  of  an  estate  as 
owner ;  he  is  not  under  any  fiduciary  obli- 
gation; he  finds  a  flaw,  or  a  supposed 
flaw,  in  his  title,  which  it  is  not,  in  point 
of  law  or  equity,  his  duty  to  disclose  to 
any  person ;  he  believes  that  the  flaw  or 
supposed  delect  is  not  known  to  the  only 
person,  who,  if  it  is  a  defect,  is  entitled  to 
take  advantage  of  it,  but  that  this  person 
may  probjibly  or  possibly  soon  hear  of  it, 
and  then  institute  a  suit,  or  make  a  claim. 
Under  this  apprehension  he  consults  a  so- 
licitor, and,  through  the  solicitor,  lays  a 
case  before  counsel  on  the  subject,  and 
receives  his  opinion.  Some  time  after- 
wards the  apprehended  adversary  becomes 
an  actual  adversary,  for,  coming  to  the 
knowledge  of  the  defect  or  supposed  flaw 
in  the  title,  he  makes  a  claim,  and,  after  a 
preliminary  correspondence,  commences  a 
suit  in  equity  to  enforce  it ;  but  between  the 
commencement  of  the  correspondence  and 
the  actual  institution  of  the  suit,  the  man 
in  possession  again  consults  a  solicitor, 
and  through  him  again  lays  a  case  before 
counsel.  According  to  the  respondent's 
argument  before  me  on  this  occasion,  the 
defendant,  in  the  instance  that  I  have  sup- 
posed, is  as  clearly  bound  to  disclose  the 
first  consultation  and  the  first  case,  as  he 
is  clearly  exempted  from  discovering  the 
second  consultation  and  the  second  case. 
I  have,  I  repeat,  yet  to  learn  that  such  a 
distinction  has  any  foundation  in  reason 
or  convenience.  The  discovery  and  vin- 
dication and  establishment  of  truth,  are 
main  puri)()ses,  certainly,  of  the  existence 
of  courts  of  justice  ;  still,  for  the  obtaining 
of  these  objects,  which,  however  valuable 
and  important,  caimot  be  usefully  pursued 
without  moderation,  cannot  be  eitlier  use- 
fully or  creditably  pursued  unfairly,  or 
gaiued  by  unfair  meaus  —  not  every  chan- 


nel is  or  ought  to  be  open  to  them.  The 
practical  inetficacy  of  torture  is  not,  I  sup- 
l>ose,  the  most  weighty  objection  to  that 
mode  of  examination,  nor  probably  would 
the  purpose  of  the  mere  disclosure  of 
truth  have'  been  otherwise  tlian  advanced 
by  a  refusal,  on  the  part  of  the  Lord  Chan- 
cellor in  lbl5,  to  act  against  the  solicitor, 
who,  in  the  cause  between  Lord  Cholmon- 
deley  and  Lord  Clinton,  had  acted  or  pro- 
posed to  act  in  the  manner  which  Lord 
pjldon  thought  it  right  to  prohibit.  Trutli, 
like  all  other  good  things,  may  be  loved 
unwisely — may  be  jnirsued  too  keenly  — 
may  cost  too  much.  And  surely  the 
meanness  and  the  mischief  of  prying  into 
a  man's  confidential  consultations  with  his 
legal  adviser,  the  general  evil  of  infusing 
reserve  and  dissimulation,  uneasiness  and 
suspicion  and  fear,  into  those  communica- 
tions which  must  take  place,  and  which, 
unless  in  a  condition  of  {)ertect  security, 
must  take  place  uselessly  or  worse,  are 
too  great  a  price  to  pay  for  truth  itself." 
See  11  Jur.  pp.  54,  55 ;  1  De  Gex  & 
Smale,  25-29.  See  also  Gresley  on  Evid. 
32,  33 ;  Bp.  of  Meath  v.  Marq.  of  Win- 
chester, 10  Bing.  330,  375,  454,  455;  Nias 
V.  The  Northern,  &c.,  Railway  Co.  3  My. 
&  C.  355,  357 ;  Bunbury  v.  Banbury,  2 
Beav.  173;  Herring  v.  Clobery,  1  Turn.  & 
Phil.  91 ;  Jones  v.  Pugh,  Id.  96 ;  Law 
Mag.  (London),  vol.  17,  pp.  51-74;  and 
vol.  30,  pp.  107-123;  Holmes  v.  Badde- 
ley,  1  Phil.  Ch.  R.  476.  Lord  Langdale 
has  held,  that  the  privilege  of  a  client,  as 
to  discovery,  was  not  co-extensive  with 
that  of  liis  solicitor ;  and  therefore  he 
compelled  the  son  and  heir  to  disct)ver  a 
case,  which  had  been  submitted  to  counsel 
by  his  father,  and  had  come,  with  tlie 
estate,  to  his  hands.  Greenlaw  v.  King, 
1  Beavan,  R.  137.  But  his  oi)inion,  oa 
the  general  question,  whether  the  party  is 
bound  to  discover  a  case  sul)mitted  to  his 
counsel,  is  known  to  be  opposed  to  that  of 
a  majority  of  the  English  judges,  tliough 
still  retained  by  himself  See  Crisp  v. 
Platel,  6  Beav.  62 ;  Reece  v.  Trve,  9  Beav. 
316,  318,  319;  Peile  r.  Stoddart,  13  Jur. 
;!7;;.  [•it  slmuld  Ik-  linnu'  ill  mintl  that 
nil  pri'siiinpliiiii  dt'  tiu-i  ciin  In-  iiki'Il'  against 
the  party,  upon  tlu-  ground  thatnie  de- 
clines to  allow  his  coun.'C?!  to  disclose  ex- 
isting coufidences  betw^;eu_them.  U'ent- 
wortli  r.  JJoyd,  10  Ho.  Lds.  Cas.  5>'.i;  s. 
c.  10  Jur.  N.  s.  961 ;  Bolton  v.  Corporation 
of  Liverpool,  supra.\ 


274  LAW    OF    EVIDENCE.  [PART    II. 

made  before  litit^ation,  though  in  contemplation  of,  and  with 
reference  to  such  litigation,  wliich  afterwards  took  place ;  and 
again,  in  respect  to  communications  which,  thougli  in  fact  made 
after  the  dispute  between  the  parties,  which  was  followed  by 
litigation,  were  yet  made  neither  in  contemplation  of,  nor  with 
reference  to,  such  litigation  ;  and  again,  in  regard  to  communica- 
tions of  cases  or  statements  of  fact,  made  on  behalf  of  a  party  by 
or  for  his  solicitor  or  legal  adviser,  on  the  subject-matter  in  ques- 
tion, after  litigation  connnenced,  or  in  contemplation  of  litigation 
on  tlic  same  subject  with  other  persons,  with  the  view  of  asserting 
the  same  riglit ;  but  all  these  distinctions  have  been  overruled, 
and  the  communications  held  to  be  within  the  privilege.^  And 
where  a  cestui  que  trust  filed  a  bill  against  his  trustee,  to  set  aside 
a  purchase  by  the  latter  of  the  trust  property,  made  thirty  years 
back ;  and  the  trustee  filed  his  cross-bill,  alleging  that  the  cestui 
que  trust  had  long  known  his  situation  in  respect  to  the  property, 
and  had  acquiesced  in  the  purchase,  and  in  proof  thereof  that  he 
had,  fifteen  years  before,  taken  the  opinion  of  counsel  thereon,  of 
which  he  prayed  a  discovery  and  production ;  it  was  held  that  the 
opinion,  as  it  was  taken  after  the  dispute  had  arisen  which  was 
the  subject  of  the  original  and  cross-bill,  and  for  the  guidance  of 
one  of  the  parties  in  respect  of  that  very  dispute,  was  privileged 
at  the  time  it  was  taken ;  and  as  the  same  dispute  was  still  the 
suVycct  of  the  litigation,  the  communication  still  retained  its 
privilege.^  But  where  a  bill  for  the  specific  performance  of  a 
contract  for  the  sale  of  an  estate  was  brought  by  the  assignees  of 
a  bankru])t  wlio  has  sold  it  under  their  commission,  and  a  cross- 
bill was  lilcd  against  them  for  discovery,  in  aid  of  the  defence, 
it  was  held  that  the  privilege  of  protection  did  not  extend  to  pro- 
fessional and  confidential  conmmnications  between  the  defendants 
and  their  counsel,  respecting  the  property  and  before  the  sale,  but 
only  to  such  as  had  passed  after  the  sale ;  and  that  it  did  not 
extend  to  communications  between  them  in  the  relation  of  prin- 
cipal and  agent ;  nor  to  those  had  by  the  defendants  or  their 
counsel  with  the  insolvent,  or  his  creditors,  or  the  provisional 
assignee,  or  on  behalf  of  the  wife  of  the  insolvent.^ 

1  Ld.    WalsiiiKham    v.    Gooflricke,    8         ^  Woods  v.  Woods,  9  Jur.  G15,  per  Sir 

Hare,  122,   125 ;    Hughes  v.  liiddulj)!!,  4  J.  Wigram,  V.  C. 

Russ.  190;  Ventw.  Pacey,  Id.  193;  Clag-         »  Kobinson  v.  Flight,  8  Jur.  888,  per 

ett  V.  Phillips,  2  Y.  &  C.  82 ;  Combe  v.  Ld.  Laugdale. 
Corp.  of  Lond.  1  Y.  &  C.  631  ;  Holmes 
V.  Baddeley,  1  Phil.  Ch.  R.  476. 


CHAP.  xiiT.]     EvrnExrr:  kxcluded  from  PurjLic  policy.  275 

§  241.  Upon  the  foregoing  principles  it  has  been  heUl,  that  the 
attorney  is  not  hoimd  to  produce  title  deeds,  or  other  documents, 
left  with  him  by  his  client  for  professional  advice ;  though  he  may 
be  cxamiacd  to  the  fact  of  their  existence,  in  order  to  let  in 
secondary  evidence  of  their  contents,  which  must  Ijc  from  some 
other  source  than  himself.^  Ihit  whether  the  object  of  leaving  the 
documents  with  the  attorney  was  for  professional  advice  or  for 
another  purpose  may  be  determined  by  the  judge.^  If  he  was 
consulted  merely  as  a  conveyancer,  to  draw  deeds  of  conveyance, 
the  communications  made  to  him  in  tliat  capacity  are  within  the 
rule  of  protection,^  even  though  he  was  employed  as  the  mutual 
adviser  and  counsel  of  both  parties ;  for  it  would  be  most  mis- 
chievous, said  the  learned  judges  in  the  Common  Pleas,  if  it 
could  be  doubted,  whether  or  not  an  attorney,  consulted  upon 
a  man's  title  to  an  estate,  were  at  liberty  to  divulge  a  flaw.* 
Neither  does  the  rule  require  any  regular  retainer,  as  counsel,  nor 
any  particular  form  of  aj)plication  or  engagement,  nor  the  pay- 
ment of  fees.  It  is  enough  that  he  was  applied  to  for  advice  or 
aid  in  his  professional  character.^  But  this  character  must  have 
been  known  to  the  a})plicant ;  for  if  a  person  should  be  consulted 
confidentially,  on  the  supposition  that  he  was  an  attorney,  when 
in  fact  he  was  not  one,  he  will  be  compelled  to  disclose  the  matters 
communicated.^ 

§  242.  Tliis  rule  is  limited  to  cases  where  the  witness,  or  the 

1  Brard  i\  Ackerman,  5  Esp.  119;  Doe  between  themselres.     So  it  was  held  in 

V.  Harris,  5  C.  &  P.  592 ;  Jackson  ;;.  Bur-  chancery,  in   a  suit  by  the  wife  against 

tis,  14  Joluis.  3U1 ;  Dale  c.  Livingston,  4  the  husband,  for  specific  perforniance  of 

Wend.  558  ;   Brandt  v.  Klein,  17  Johns,  an   agreement   to   charge   certain  estates 

335 ;  Jackson  v.  McVey,  IS  Johns.  330 ;  with  her  jomture.     Warde  v.  Warde,  15 

Bevan  v.  Waters,  1  M.  &  M.  235 ;  Eicke  Jur.  759. 

V.  Nokes,  Id.  303;  Mills  v.  Oddy,  6  C.  &  *  Cromack  v.  Heathcote,  2  B.  &  B.  4; 

r.  728;    Marston  i-.  Downes,   Id.  381 ;  1  Doe  v.  Seaton,  2  Ad.  &  El.  171;  Clay  i'- 

Ad.  &  El.  31,  s.  c. ;  explained  in  Ilibbcrt  Williams,  2  IMunf.  105,  122;  Doe  v.  Wat- 

V.  Kiuuht,  12  Jur.  1(J2;  Bate  v.  Kinsey,  1  kins,  3  Bing.  n.  c.  421. 
C.  M.  &  K.  38  ;  Doe  v.  Gilbert,  7  M.  &  W.  "  Foster  v.  Hall,  12  Pick.  89.    See  also 

102;   Nixon  v.  Mayoh,  1  IM.  &  Hob.  70.  Bean  c.  Q'uiinby,  5  N.  Hanip.  94.     An  ap- 

Davies  v.  Waters,  9  M.  &  W.  (308  ;  Coatcs  plication  to  an  attorney  or  solicitor,  to  ad- 

r.   Birch,  1  G.  &  I).  474 ;  1  Dowl.  P.  C.  vancc  money  on  a  mortgage  of  property 

540;  Doe  v.  Langdon,  12  Ad.  &  El.  711,  described  in  a  forged  will,  sliown  to  him, 

N.  s.  is  not  a  privilegetl  communication  as  to 

^  Beg.  V.  Jones,  1  Denis.  Cr.  Cas.  166.  the  will.     Keg.  v.  Farley,  1  Denison,  197. 

8  Cromack  v.  Heathcote,  2  B.  &  B.  4;  And  see  Reg.  v.  Jones,  Id.  166.     [*The 

Parker  c.  Carter,  4  Munf.  273;  see  also  mere  fact  of  having  retained  counsel  is  not 

AVilson  c.  Troup,  7  Johns.  Ch.  25.     If  he  a  privileged  communication.     Forshaw  v. 

was  cmjiloyed    as   the   conveyaticer   and  Lewis,  1  Jur.  n.  s.  263.] 
nuitual  counsel  of  both  parties,  either  of  "  Fountain    v.    Young,    6    Esp.    113; 

them  may  comjiel  the  production  of  the  [Barnes  v.  Hiu-ris,  7  Cash.  576,  578.] 
deeds  and  papers,  in  a   subsetpient   suit 


276  LAW   OF   EVIDENCE.  [PART   II. 

defendant  in  a  bill  in  cliancery  treated  as  such,  and  so  called  to 
discover,  learned  the  matter  in  question  only  as  counsel,  solicitor, 
or  attorney,  and  in  no  other  way.  If,  therefore,  he  were  a  party 
to  the  transaction,  and  especially  if  he  were  party  to  the  fraud  (as, 
for  exam})le,  if  he  turned  informer,  after  being"  engaged  in  a  con- 
spiracy), or,  in  other  words,  if  he  were  acting  for  himself,  though 
he  might  also  be  employed  for  another,  he  would  not  be  protected 
from  disclosing ;  for  in  such  a  case  his  knowledge  would  not  be 
acquired  solely  by  his  being  employed  professionally.^ 

§  243.  The  protection  given  by  the  law  to  such  conununications 
does  not  cease  with  the  termination  of  the  suit,  or  other  litigation 
or  business,  in  which  they  were  made ;  nor  is  it  affected  by  the 
party's  ceasing  to  employ  the  attorney,  and  retaining  another ; 
nor  by  any  other  change  of  relations  between  them ;  nor  by  the 
death  of  the  client.  The  seal  of  the  law,  once  fixed  upon  them, 
remains  for  ever ;  unless  removed  hy  the  party  himself,  in  whose 
favor  it  was  there  placed.^  It  is  not  removed  without  tlie  client's 
consent,  even  though  the  interests  of  criminal  justice  may  seem  to 
require  the  production  of  the  evidence.^ 

§  244.  This  rule  is  further  illustrated  by  reference  to  the  cases, 
in  which  the  attorney  may  be  examined,  and  which  are  therefore 

1  Greenough  r.  Gaskell,  1  My.  &  K.  to   the    matter    privileged.      Vaillant    v. 

103,  10-1 ;  Uesborough  v.  Rawlins,  3  My.  Dodemead,  2  Atk.  5"24  ;  Waldron  v.  Ward, 

&  Craig,  515,  52I-523;  Story  on  Eq.  PI.  Sty.  44U.     If  several  clients  consult  him 

§§  601,  602.     In  Duffin  v.  Smith,  Peake's  respecting    their    common   business,   the 

Cas.   108,   Lord   Kenyon  recognized   this  consent  of  them  all  is  necessary  to  enable 

principle,  though  lie  applied  it  to  the  case  him  to  testify  ;  even  in  an  action  in  which 

of  an  attorney  preparing  title  deeds,  treat-  only  one  of  them  is  a  party.     Bank  of 

ing  him  as  thereby  becoming  a  party  to  Utica  v.  Mersereau,  3  Barb.  Ch.  K.  528. 

the  transaction  :   but  such  are  now  held  "Where  the  party's  solicitor  became  trustee 

to   be   professi(mal  conununications.     [A  under  a  deed  for  the  benefit  of  the  client's 

communication  to  an  attorney  will  not  be  creditors,  it  was  held  that  communications 

protected,  unless  it  apjiears  that,  at  the  subsequent  to  the  deed  were  still  privi- 

time  it  was  made,  he  was  acting  as  legal  legcd.  Pritchard  v.  Foulkes,  1  Coop.  14. 
adviser  upon   tlie  very  matter  to  whicli  "  Ilex  v.  Smith,  Phil.  &  Am.  on  Evid. 

the  comnmnication  referred.     Branden  v.  182;  Hex  v.  ]3ixon,  3  Burr.  1687;  Anon. 

Gowing,  7  Rich  (s.  c),  459.    Facts  stated  8  Mass.  370;    Petrie's  case,  supra.     But 

to  an  attorney,  as  reasons  to  show  that  the  see  Regina  v.  Avery,  8  C.  &  P.  596,  in 

cause  in  wiiich  he  is  sought  to  be  retained,  which  it  was  held  that,  where  the  same 

does  not  conflict  with  the  interests  of  a  attorney  acted  for  the  mortgagee,  in  lend- 

client  for  whom  he  is  already  employed,  ing  the  money,  and  also  for  the  prisoner, 

are  not  confidential  conmiunications.  Ilea-  tlie  mortgagor,  in  preparing  the  mortgage 

ton  V.  Findlay,  12  Penn.  St.  R.  304.]  deed,  and  received  from  tlie  prisoner,  as 

-  Wilson  'v.   Jtastall,  4  T.  R.  759,  per  part  of  his  title  deeds,  a  forged  will,  it  was 

Buller,  J. ;  Petrie's  case,  cited  arg.  4  T.  R.  held,  on  a  trial  for  forging  the  will,  that  it 

756;    Parker   v.   Yates,    12   Moore,    520;  was  not  .m  privileged  connnunication;  and 

Merle  v.  Moore,  R.  &  M.  390.     And  the  the  attorney  was  held  bound  to  produce  it. 

client  does  not  waive  this  privilege  merely  See   also    Shore   v.   Bedford,    5   JMan.    & 

l)y  calling  the  attorney  as  a  witness,  un-  Grang.  271. 
less  he  also  himself  examines  him  in  cliief 


CHAP.  XIII.]       EVIDENCE   EXCLUDED   FROM   PUBLIC   POLICY.  277 

sometimes  mentioned  as  exceptions  to  the  rule.  These  apparent 
exceptions  are,  where  the  communication  was  made  before  the 
attorney  was  employed  as  such,  or  after  his  employment  had  ceased ; 
—  or  where,  though  consulted  by  a  friend,  because  he  was  an 
attorney,  yet  he  refused  to  act  as  such,  and  was  therefore  only 
applied  to  as  a  friend;  —  or  where  there  could  not  be  said,  in  any 
correctness  of  speech,  to  be  a  communication  at  all ;  as  where, 
for  instance,  a  fact,  something  that  was  done,  became  known  to 
him,  from  his  having  been  brought  to  a  certain  place  by  the  cir- 
cumstance of  liis  being  the  attorney,  but  of  which  fact  any  other 
man,  if  there,  would  have  been  equally  conusant  (and  even  this 
has  been  held  privileged  in  some  of  the  cases)  ;  —  or  where  the 
matter  communicated  was  not  in  its  nature  private,  and  could  in 
no  sense  be  termed  the  subject  of  a  confidential  disclosure  ;  — 
or  where  the  thing  had  no  7'eference  to  the  professional  emjjloyment, 
though  disclosed  while  the  relation  of  attorney  and  client  sub- 
sisted ;  —  or  where  the  attorney,  having  made  himself  a  subscribing 
ivitness,  and  thereby  assumed  another  character  for  the  occasion, 
adopted  the  duties  which  it  imposes,  and  became  bound  to  give 
evidence  of  all  that  a  subscribing  witness  can  be  required  to  prove. 
In  all  such  cases,  it  is  plain  that  the  attorney  is  not  called  upon 
to  disclose  matters,  which  he  can  be  said  to  have  learned  by  com-^ 
munication  with  his  client,  or  on  his  client's  behalf,  matters 
which  were  so  committed  to  him,  in  his  capacity  of  attorney,  and 
matters  which  in  that  capacity  alone,  he  had  come  to  kuow.i 

§  245.  Thus,  the  attorney  may  be  compelled  to  disclose  the  name 
of  the  person  by  whom  he  was  retained,  in  order  to  let  in  the 
confessions  of  the  real  party  in  interest  ;2  —  the  character  in 
which  his  client  employed  him,  whether  that  of  executor  or  trustee, 
or  on  his  private  account ;  ^  —  the  time  when  an  instrument  was 

1  Per  Lord  Brougham,  in  Greenough  been  held,  that  communication  between  a 
V.  Gaskell,  1  My.  &  K.  104.  See  also  testator  and  the  solicitor  who  prepared  his 
Desborough  r.  Kawlins,  3  My.  &  Craig,  will,  respecting  the  will  and  the  trusts 
521,  52'2 ;  Lord  AValsingham  w.Goodricke,  thereof,  are  not  privileged.  Russell  v. 
;5  Hare,  R.  122;  Story's  Eq.  PI.  §§  601,  Jackson,  15  Jur.  1117. 
(102  ;  Bolton  v.  Corporation  of  Liverpool,  "^  Levy  v.  Pope,  1  M.  &  M.  410 ;  Brown 
1  My.  &  K.  88;  Anneslev  r.  E.  of  Angle-  v.  Payson,  6  N.  Hamp.  443;  Chirac  ;•. 
sea.'l?  Howell's  St.  Tr!^  1239-1244 ;  Gil-  Reinicker,  11  Wheat.  280;  Gower  r.  Em- 
lard  I'.  Bates,  6  M.  &  W.   547;    Rex  v.  ery,  6  Shepl.  79. 

Brewer,  6  C.  &  P.  303;    Levers  v.  Van  »  Beckwith  r.  Benncr,  G  C.  &  P.  681. 

Buskirk,  4  Barr,  309.      Communications  But  see  Chirac  v.  Reinicker,  11  Wheat, 

between  the  solicitor  and  one  of  his  clients'  280,  295,  where  it  was  lielil,  that  counsel 

witnesses,  as  to  the  evidence  to  be  given  could  not  disclose  whether  they  were  em- 

by  the  Avitness,  are  not  privUeged.     Mac-  ployed  to  conduct  an  ejectment  for  their 

kenzie  v.  Yeo,  2  Ciu't.  800.     It  has  also  client  as  landlord  of  the  premises. 
VOL.  I.                 ■                              24 


278  LAW    OF   EVIDENCE.  [PART   II. 

put  into  his  liandtj,  but  not  its  condition  and  appearance  at  that 
time,  as,  whether  it  were  stamped  or  indorsed,  or  not ;  ^  —  the 
fact  of  his  paying  over  to  his  client  moneys  collected  for  him ;  — 
the  execution  of  a  deed  by  his  client  which  he  attested  ;2  —  a 
statement  made  by  him  to  the  adverse  party.^  He  may  also  be 
called  to  prove  the  identity  of  his  client ;  *  —  the  fact  of  his  having 
sworn  to  his  answer  in  chancery,  if  he  were  then  present;^  — 
usury  in  a  loan  made  ])y  him  as  broker,  as  well  as  attorney  to  the 
lender;^  —  the  fact  that  he  or  his  client  is  in  possession  of  a 
certain  document  of  his  client's,  for  the  purpose  of  letting  in 
secondary  evidence  of  its  contents ;  '^  —  and  his  client's  hand- 
writing.^ But  in  all  cases  of  this  sort,  the  privilege  of  secrecy  is 
carefully  extended  to  all  the  nuittcrs  professionally  disclosed,  and 
which  he  would  not  have  known  but  from  his  being  consulted 
professionally  by  his  client. 

■§  246.  Where  an  attorney  is  ealled  upon  whether  by  subpoena 
duces  tecum,  or  otherwise,  to  produce  deeds  or  papers  belonging  to 
his  client,  who  is  not  a  party  to  the  suit,  the  court  will  inspect  the 
documents,  and  pronounce  upon  their  admissibility,  according  as 
their  production  may  appear  to  be  prejudicial  or  not  to  the  client ; 
in  like  manner,  as  where  a  witness  objects  to  the  production  of 
his  own  title-deeds.^  And  the  same  discretion  will  be  exercised 
by  the  courts,  where  the  documents  called  for  are  in  the  hands 
of  solicitors  for  the  assignees  of  bankrupts  ;  ^^  though  it  was  at  one 

1  Wheatley  v.  Williams,  1  Mees.  &  W.  ^  Duffin  v.  Smith,  Peake's  Cas.  108. 
533;  Erown  v.  Payson,  G  N.  Ilamp  443.  "  Bevan  v.  Waters,  1  M.  &  M.  235; 
But  if  the  question  were  about  a  rasuru  in  Eicke  v.  Nokes,  Id.  303;  .Jackson  v. 
a  (leeil  or  will,  he  might  be  examined  to  McVey,  18  Johns.  330 ;  Brandt  r.  Klein, 
the  question,  whether  he  had  ever  seen  it  17  Johns.  335;  Doe  v.  Ross,  7  M.  &  W. 
in  any  other  ])liii'ht.  Bull.  N.  P.  284.  So,  102;  Kobson  ?■.  Kemp,  5  Esp.  53 ;  Coates 
as  to  a  confession  of  the  rasure  by  his  v.  Birch,  2  Ad.  &  El.  252,  n.  s.  ;  Coveney 
client,  if  it  were  confessed  before  his  re-  v.  Tannahill,  1  Hill,  33;  Dwyer  v.  Collins, 
tainer.     Cutts  v.  Pickering,  1  Ventr.  197.  IG  Jur.  oGU ;  7  Exch.  G39, 

See  also  Baker  v.  Arnold,  1  Caines,  2-58,  **  Ilurd  v.  Moring,  1  C.  &  P.  372;  John- 

per  Thompson  &  Livingston,  Js.  son  v.  Daverne,  l'.J  Johns.  134;  4  Hawk. 

2  Doe  e.  Andrews,  Cowp.  845 ;  Robson    P.  C,  b.  2,  ch.  46,  §  89. 

)'.  Kemp,  4  Esp.  235 ;    5  Esp.  53,  s.  c. ;  ^  Copeland  v.   Watts,  1  Stark.  R.  95 ; 

Sanford  v.  Remington,  2  Ves.  189.  Amey  v.  Long,  9  East,  473 ;  1  Campb.  14 

»  Ripon  r.  Davies,  2  Nev.  &  M.  210;  s.  c. ;  Phil.  &  Am.  on  Evid.  186;  1  Phil. 

Shore  r.  Bedford,  5  M.  &  (ir.  271;  Griffith  Evid.  176;   Reynolds  v.  Rowley,  3  Rob. 

V.   Davies,    5   B.  &  Ad.   502,  overruling  (Louis.)  R.  201;    Travis  n.  January,  Id. 

Gainsford  v.  Grammar,  2  Campb.  9,  con-  227. 

tra.  i*^  Bateson  v.  Hartsink,  4  Esp.  43 ;  Co- 

*  Cowp.  846 ;    Beckwith  v.  Benner,  6  hen  v.  Templar,  2  Stark.  R.  2G0 ;  Laing 

C.  &  P.  681 ;  Hurd  i-.  Moring,  1  C.  &  P.  r.  Barclav,  3  Stark.  R.  38 ;  Hawkins  v. 

372;  Rex  v.  Watkinson,  2  Stra.  1122,  and  Howard,  Ry.  &  M.  G4 ;  Cor-sen  v.  Dubois, 

note.  Holt's    Cas.    239;    Bull   v.   Loveland,   10 

5  Bull.  N.  P.  284 ;  Cowp.  846.  Pick.  9,    14 ;  Volant   v.    Soyer,  22    Law 


CHAP.  Xlll.]      EVIDENCE   EXCLUDED   FROM   PUBLIC   POLICY.  279 

time  thought  that  their  production  was  a  matter  of  public  duty.i 
So,  if  the  ducumentscallcd  for  are  in  the  hands  of  tha  (ic/ent.or__ 
steward  of  a  third  person,  or  even  in  the  hands  of  the^  owner 
hiniseTf;  TTieri^protluctiou  will  not  be  required  where,  in  the  judg- 
mept  of  the  courtj  it  may  iniuriuusly  affect  his  title.^  Tliis  exten- 
sion of  the  rule,  which  will  Ijc  more  fully  treated  hereafter,  is 
founded  on  a  consideration  of  the  great  inconvenience  and  mis- 
chief which  may  result  to  individuals  from  a  compulsory  disclosure 
and  collateral  discussion  of  their  titles,  in  cases  where,  not  being 
themselves  parties,  the  whole  merits  cannot  be  tried. 

§  247.  There  is  one  other  situation,  in  which  the  exclusion  of 
evidence  has  been  strongly  contended  for,  on  the  ground  of  con- 
fidence and  the  general  good,  namely,  that  of  a  clergyman;  and 
this  chiefly,  if  not  wholly,  in  reference  to  criminal  conduct  and 
proceedings ;  that  the  guilty  conscience  may  with  safety  disburden 
itself  by  penitential  confessions,  and  by  spiritual  advice,  instruc- 
tion, and  discipline,  seek  pardon  and  relief.  The  law  of  Papal 
Rome  has  adopted  this  principle  in  its  fullest  extent;  not  only 
excepting  such  confessions  from  the  general  rules  of  evidence,  as 
we  have  already  intimated,^  but  punishing  the  priest  who  reveals 

J.   C.  P.   83;    16   Eng.   Law   &    Eq.  E.  instrument,    with    a  view    to    determine 

420.  whether  the  objection  to  giving  testimony 

1  Pearson  v.  Fletcher,  5  Esp.  90,  per  in  regard  to  it  be  well  founded. 

Lord  Ellenborough.  Where  a  witness  declined  answering  on 

••2  Kex  V.  Hunter,  3  C.  &  P.  591 ;  Pick-  the  ground  that  "  his  knowledge  inquired 
ering  v.  Noyes,  1  B.  &  C.  262 ;  Eoberts  v.  after  had  been  acquired  by  virtue  of  his 
Simpson,  2  Stark.  R.  203  ;  Doe  v.  Thomas,  employment  as  the  solicitor  of  the  defend- 
9  B.  &  C.  288;  Bull  v.  Loveland,  10  Pick,  ant  in  relation  to  such  nuitlers,  and  from 
9,  U.  ^Vnd  see  Doe  v-  Langdon,  12  Ad.  no  other  source,"  the  court  held,  Kinders- 
&  El.  711,  N.  s. ;  13  Jur.  96  ;  Doe  v.  Ilert-  by,  V.  C,  that  to  be  privileged,  it  must 
ford,  13  Jur.  632.  H.  brought  an  action  be  "a  confidential  communication  between 
upon  bonds  against  E.,  in  winch  the  opin-  him  and  his  client  in  the  character  of  his 
ion  of  eminent  counsel  had  been  taken  by  professional  relation  of  solicitor  and  client, 
the  plaintifl;  upon  a  case  stated.  After-  It  is  not  necessary  to  show  that  it  was 
wards  ;m  action  was  brought  by  C.  against  secret,  but  it  must  pass  in  that  relanon ; 
E.  upon  other  similar  bonds,  and  the  soli-  and  it  must  arise  from  communications  by 
citor  of  H.  lent  to  the  solicitor  of  C.  the  the  client  to  the  solicitor,  or  solicitor  to  the 
case  and  opinion  of  counsel  taken  in  the  client."  Marsh  v.  Keith,  6  Jur.  n.  s.  1182.] 
former  suit,  to  aid  him  in  the  conduct  of  ^  Supra,  §  229,  note.  By  the  Capitu- 
the  latter.  And  upon  a  bill  filed  by  E.  laries  of  the  French  kuigs,  and  some  other 
against  C,  for  the  discovery  and  produc-  continental  coiles  of  the  Middle  Ages,  the 
lion  of  this  document,  it  was  held  to  be  a  clergy  were  not  only  e.xcusetl,  but  in  some 
privileged  communication.  Enthoven  i\  cases  were  utterly  prohibited  from  attend- 
Cobb,  16  Jur.  1152;  17  Jur.  81;  15  Eng.  ing  as  witnesses  in  any  cause.  Clerici  de 
Law  &  Eq.  R.  277,  295.  [*In  a  late  case,  judicii  sui  cognitione  non  cogantur  in  pub- 
Volant  r.  Soyer,  13  C.  B.  231,  it  was  held  licum  diccre  testimonium.  C'apit^  Reg. 
that  an  attoriiev  had  no  right  to  i)roduce  Fraucoruin.  lib.  7,  §  118,  (A.  D.  827.)  Ut 
or  to  answer  any  questions  concerning  the  nulla  ad  testimonia  dicendum,  ecclesiastici 
nature  or  contents  of  a  deed  or  other  docu-  cujuslibet  pulsetur  persona.  Id.  §  91.  See 
ment  intrusted  to  him  professionally  by  Leges  Barbar.  Antiq.  vol.  3,  pp.  313,  316. 
his  client;  nor  can  the  judge  look  at  the  Leges  Langobardicie,  in  the  same  coUec- 


280  LAW   OF   EVIDENCE.  [PART  II. 

theiu.  It  even  lias  gone  farther ;  for  3Iaseardus,  after  observing 
tliat,  in  general,  persons  coming  to  the  knowledge  of  facts,  under 
an  oath  of  secrecy,  are  compcllalde  to  disclose  them  as  witnesses, 
jiroceeds  to,  state  the  case  of  confessions  to  a  priest  as  not  within 
the  operation  of  the  rule,  on  the  ground  that  the  confession  is 
made  not  so  much  to  the  priest,  as  to  th^  Deity ;  whom  he  repre- 
sents ;  and  that  therefore  the  priest,  when  appearing  as  a  witness 
in  his  private  character,  may  lawfully  swear  that  he  knows  nothing 
of  the  subject.  Hoc  tamen  restringe,  non  posse  procedere  in  sacerdote 
producto  in  testem  contra  reum  cr'im'mis,  quando  in  confessione  sacra- 
mentali  fuit  aliquid  sibi  dictum,  quia  potest  dicere,  se  nihil  scire  ex 
eo  ;  quod  illud,  quod  scit,  seit  ut  Deus,  et  ut  Deus  non  producitur  in 
testem,  sed  ut  liomo,  et  tanquam  liomo  ignorat  illud  super  quo  pro- 
ducitur} In  Scotland,  w^here  a  prisoner  in  custody  and  preparing 
for  his  trial,  has  confessed  his  crimes  to  a  clergyman,  in  order  to 
obtain  spiritual  advice  and  comfort,  the  clergyman  is  not  required 
to  give  evidence  of  such  confession.  But  even  in  criminal  cases, 
this  exception  is  not  carried  so  far  as  to  include  communications 
made  confidentially  to  clergymen,  in  the  ordinary  course  of  their 
duty .2  Though  the  law  of  England  encourages  the  penitent  to 
confess  his  sins,  "  for  the  unburthcning  of  his  conscience,  and 
to  receive  spiritual  consolation  and  ease  of  mind,"  yet  the  minister 
to  whom  the  confession  is  made  is  merely  excused  from  presenting 
the  offender  to  the  civil  magistracy,  and  enjoined  not  to  reveal  the 
matter  confessed,  "  under  pain  of  irregularity."  ^  In  all  other 
respects,  he  is  left  to  the  full  operation  of  the  rules  of  the  common 
law,  by  which  he  is  bound  to  testify  in  such  cases,  as  any  other 
person  when  duly  summoned.  In  the  common  law  of  evidence 
there  is  no  distinction  between  clergymen  and  laymen ;  but  all 
confessions,  and  other  matters,  not  confided  to  legal  counsel,  must 
be  disclosed,  when  required  for  the  purposes  of  justice.  Neither 
penitential  confessions,  made  to  the  minister,  or  to  members  of 
the  party's  own  church,  nor  secrets  confided  to  a  Roman  Catholic 

tion,  vol.  1,  pp.  184,  209,  237.     But  from  4,  p.  294;    Ancient  Laws   and   Inst,  of 

the  consstitutions  of  Kinj^  Ethelred,  which  En},dand,  vol.  1,  p.  347,  §  27. 

provide   for    tlie    punishment    of   priests  ^  Mascard.  De  Prohat.  vol.  1,  Quaest. 

fitiilty  of  perjury,  —  "  Si  presbyter,  nllruhi  5,  n.  61 ;  Id.  Concl.  377.    Vid.  et  P.  Fari- 

inveniatur  in  tiilso  testimonio,  vel  in  per-  nac.  Opera,  tit.  8,  Quajst.  78,  n.  73. 

jurio,"  —  it  would  seem  tliat  the  English  -  Tait  on  Evidence,  pp.  386,  387;  Ali- 

law  of  tliat  day  did  not  recognize  any  dis-  son's  Practice,  p.  586. 

tinction  between  tJiem  and  the  laity,  in         ^  Const.  &  Canon,  1  Jac.  1,  Can.  cxiii. ; 

regard  to  the  obligation  to  testify  as  wit-  Gibson's  Codex,  p.  963. 

nesses.     See  Leges  Barbaror.  Antiq.  vol. 


CHAP.  XIII.]       EVIDENCE   EXCLUDED   FROM   PUBLIC   POLICY. 


281 


priest  ill  the  course  of  confession,  are  regarded  as  privileged  com- 
munications.^ 

§  248.  Neither  is  this  protection  extended  to  medical  persons,^ 
in  regard  to  information  which  they  have  acquired  confidentially, 
by  attending  in  their  professional  characters ;  nor  to  confidential 
friends^  clerks,^  ha7ikers^  or  stewards,^  except  as  to  matters  which 
the  employer  himself  would  not  be  obliged  to  disclose,  such  as 
lits  title-deeds  and  private  papers,  iii  a  case  in  which  he  is  not 
"a" 


§""2T9.  "^he  case  of  judges  and  arbitrators  may  be  mentioned, 
as  the  second  class  of  privileged  communications.  In  regard  to 
judges  of  courts  of  record,  it  is  considered  dangerous  to  allow 
them  to  be  called  upon  to  state  what  occurred  before  them  in 
court ;  and  on  this  ground,  the  grand  jury  were  advised  not  to 
examine  the  chairman  of  the  Quarter  Sessions,  as  to  what  a  person 
testified   in  a  trial  in  that  court."     The  case  of  arbitrators  is 


1  Wilson  V.  Eastall,  4  T..R.  753;  But- 
ler V.  Moore,  McNally's  Evid.  253-255; 
Anon.  2  Skin.  404,  per  Holt,  C.  J. ;  Du 
Barre  v.  Livette,  Peake's  Cas.  77 ;  Com- 
monwealth V.  Drake,  15  Mass.  161.  The 
contrary  was  held  hy  l)e  Witt  Clinton, 
Mayor,  in  the  Court  of  General  Sessions 
in  New  Yorlj,  June,  1813,  in  The  People 
V.  Phillips,  1  Southwest.  Law  Journ.  p. 
90.  By  a  subsequent  statute  of  New  York 
(2  Rev.  St.  40G,  §  72),  "No  minister  of 
the  gospel,  or  priest  of  any  denomination 
whatsoever,  shall  be  allowed  to  disclose 
any  confessions  made  to  him  in  his  pro- 
fessional character,  in  the  course  of  disci- 
pline enjoined  hy  the  rules  or  practice  of 
such  denomination."  This  is  held  to  ap- 
ply to  those  confessions  onlij  which  are 
made  to  the  minister  or  priest  pro/cssion- 
(illij,  and  in  the  course  of  (liscijiline  enjoined 
by  the  Church.  The  People  v.  Gates,  13 
Wend.  311.  A  similar  statute  exists  in 
Missouri  (Rev.  Stat.  1845,  ch.  186,  §  19; 
and  in  Wisconsin,  Rev.  Stat.  1849,  ch.  98, 
§  75;  and  in  Micliicjan,  Rev.  Stat.  1846, 
ch.  102,  S  85;  and  in  loini,  Code  of  1851, 
art.  2393).  See  also  Broad  v.  Pitt,  3  C. 
&  P.  518 ;  in  which  case,  Best,  C.  J., 
said,  that  he  for  one,  would  never  compel 
a  clergyman  to  disclose  communications 
made  to  him  bj^  a  prisoner ;  but  that,  if 
he  chose  to  disclose  them,  he  would  re- 
ceive them  in  evidence.  Joy  on  Confes- 
sions, &c.,  pp.  49-58  ;  Best's  Principles  of 
Eviilence,  §  417-419. 

-  Duchess  of  Kingston's  case,  11  Hargr. 
St.  Tr.  243;    20  Howell's    St.   Tr.  643; 


Rex  V.  Gibbons,  1  C.  &  P.  97  ;  Broad  v. 
Pitt,  3  C.  &  P.  518,  per  Best,  C.  J.  By 
the  Revised  Statutes  of  New  York  (vol. 
2,  p.  406,  §  73),  "  No  person,  duly  author- 
ized to  practise  physic  or  surgery,  shall 
be  allowed  to  disclose  any  information 
which  he  may  have  acquired  in  attending 
any  patient  in  a  professional  character, 
and  which  information  was  necessary  to 
enable  him  to  prescribe  for  such  patient 
as  a  physician,  or  to  do  any  act  for  him  as 
a  surgeon."  But  though  the  statute  is 
thus  express,  yet  it  seems  the  party  liim- 
self  may  waive  the  privilege ;  in  which 
case  the  facts  ma}'  be  disclosed.  Johnson 
V.  Johnson,  14  Wend.  637.  A  consiUta- 
tion,  as  to  the  means  of  procuring  abortion 
in  another,  is  not  privileged  by  this  stat- 
ute. Hewett  r.  Prime,  21  Wend.  79. 
Statutes  to  the  same  etiect  have  been  en- 
acted in  Missouri  (Rev.  Stat.  1845,  ch. 
186,  §  20);  and  in  Wisconsin  (Rev.  Stat. 
1849,  ch.  98,  §  75)  ;  and  in  Mirhi,/an  (Rev. 
Stat.  1846,  ch.  102,  §  86).  So  m  lou-a;  in 
Which  state  the  ])rivilege  extends  to  pub- 
lic officers,  in  cases  where  the  public  in- 
terest would  sutler  bv  the  disclosure. 
Code  of  1851,  arts.  2393,  2395. 

8  4  T.  R.  758,  per  Ld.  Kenyon ;  Hoff- 
man V.  Smith,  1  Caines,  157,  159. 

*  Lee  I'.  Birrell,  3  Campb.  337 ;  Webb 
V.  Smith,  1  C.  &  P.  337. 

6  Loyd  V.  Freshfield,  2  C.  &  P.  325. 

6  Valllant  v.  Dodemcad,  2  Atk.  524  ; 
4  T.  R.  756,  per  Buller,  J. ;  E.  of  Ealmouth 
V.  Moss,  11  Price,  455. 

7  Regina  v.  Gazard,  8  C.  &  P.  595,  per 


i 


24* 


282  LAW   OP   EVIDENCE.  [PART   II. 

governed  by  the  same  general  policy ;  and  neither  the  courts  of 
law  nor  of  equity  will  disturb  decisions  deliberately  made  by 
arbitrators,  by  recjuiring  them  to  disclose  the  grounds  of  their 
award,  unless  under  very  cogent  circumstances,  such  as  upon  an 
allegation  of  fraud;   for,  Interest  reipublicce  ut  sit  finis  litiiim.^ 

§  250.  We  now  proceed  to  the  third  class  of  cases,  in  which 
evidence  is  excluded  from  motives  of  public  ])olicy,  namely,  secrets 
of  state,  or  things,  the  disclosure  of  which  would  be  prejudicial  to 
the  pul)lic  interest.  These  matters  are  cither  those  which  concern 
the  administration  of  penal  justice,  or  those  which  concern  the 
administration  of  government ;  but  the  principle  of  public  safety 
is  in  both  cases  the  same,  and  the  rule  of  exclusion  is  applied  no 
further  than  the  attainment  of  that  object  requires.  Thus,  in 
criminal  trials,  the  names  of  persons  employed  in  the  discovery 
of  the  crime  are  not  permitted  to  be  disclosed,  any  farther  than  is 
essential  to  a  fair  trial  of  the  question  of  the  prisoner's  innocence 
or  guilt.2  "  It  is  perfectly  right,"  said  Lord  Chief  Justice  Eyre,^ 
"  that  all  opportunities  should  be  given  to  discuss  the  truth  of  the 
evidence  given  against  a  i)risoncr ;  Ijut  there  is  a  rule  which  has 
universally  ol)taincd,  on  account  of  its  importance  to  the  public 
for  the  detection  of  crimes,  that  those  persons  who  are  the  channel 
by  means  of  which  that  detection  is  made  should  not  be  unneces- 
sarily disclosed."  Accordingly,  where  a  witness,  possessed  of 
snch  knowledge,  testified  that  he  related  it  to  a  friend,  not  in 
office,  who  advised  him  to  communicate  it  to  another  quarter ; 
a  majority  of  the  learned  judges  held  that  the  witness  was  not  to 
be  asked  the  name  of  that  friend ;  and  they  all  were  of  opinion 
that  all  those  questions  which  tend  to  the  discovery  of  the  channels 
by  which  the  disclosure  was  made  to  the  officers  of  justice,  were, 
upon  the  general  principle  of  the  convenience  of  public  justice, 
to  be  suppressed  ;  that  all  persons  in  that  situation  were  protected 
from  the  discovery ;  and  that,  if  it  was  olyccted  to,  it  was  no  more 
competent  for  the  defendant  to  ask  the  witness  who  the  person 

Patteson,  J. ;  [People  v.  Miller,  2  Parker,  that,  in  a  public  prosecution,  no  question 

C.  K.  1U7.J  can  be  i)ut  which  tends  to  reveal  who  was 

1  Story,  Eq.  PI.  458,  note  (1);  Anon,  the  secret  informer  of  tlie  fiovernnient ; 
3  Atk.  Gii ;  2  Story,  Eq.  Jurisp.  (kSO ;  even  thou<fh  the  question  be  adilres.sed  to 
Johnson  v.  Durant,  4  C.  &  P.  o27  ;  Ellis  a  witness  in  order  to  ascertain  whetiier  he 
V.  Saltan,  lb.  n.  (<i)  ;  Ilabershon  r.  Troby,  was  not  himself  the  intbrmer.  Att.-Gen. 
3  Esp.  88.  [See  2  Greenl.  Evid.  (7th  edit.)  ?'.  Priaiit,  15  Law  Journ.  n.  s.  E.xch.  205; 
§  78,  and  notes.]  5  Law  Mag.  333,  n.  s. 

2  Rex  V.  Hardy,  24  Howell's  St.  Tr.  "  In  Rex  v.  Hardy,  24  Howell's  St.  Tr. 
753.     The  rule  has  been  recently  settled,  808. 


i 


CHAP.  XIII.]       EVIDENCE   EXCLUDED    FROM    PUBLIC   POLICY.  283 

was  that  advised  liim  to  make  a  disclosure,  than  to  ask  who  the 
person  was  to  whom  he  made  the  disclosure  in  consequence  of 
that  ad^•ice,  or  to  ask  any  other  question  respecting  the  channel 
of  communication,  or  all  that  was  done  under  it.^  Hence  it 
appears  that  a  witness,  who  has  been  emi)loyed  to  collect  informa- 
tion for  the  use  of  government,  or  for  the  jjurposes  of  the  police, 
will  nut  be  permitted  to  disclose  the  name  of  his  employer,  or  the 
nature  of  the  connection  between  them,  or  the  name  of  any  person 
who  was  the  channel  of  connnunication  with  the  government  or 
its  officers,  nor  whether  the  information  has  actually  reached  the 
government.  But  he  may  be  asked  whether  the  person  to  whom 
the  information  was  coimnunicated  was  a  magistrate  or  not.^ 

§  251.  On  a  like  principle  of  public  policy,  the  official  transac- 
tions between  the  heads  of  the  departments  of  state  and  their  subor- 
dinate officers  are  in  general  treated  as  privileged  communications. 
Thus,  communications  between  a  provincial  governor  and  his 
attorney-general,  on  the  state  of  the  colony,  or  the  conduct  of  its 
officers ;  ^  or  between  such'  governor  and  a  military  officer  under 
his  authority; 4  the  report  of  a  military  commission  of  inquiry, 
made  to  the  commander-in-chief  ;5  and  the  correspondence  between 
an  agent  of  the  government  and  a  Secretary  of  State,^  are  con- 
fidential and  privileged  matters,  which  the  interests  of  the  state' 
will  not  permit  to  be  disclosed.  The  President  of  the  United 
States,  and  the  governors  of  the  several  states,  are  not  bound  to 
produce  papers  or  disclose '  information  conununicated  to  them, 
when,  in  their  own  judgment  the  disclosure  would,  on  public  con- 
siderations, be  inexpedient.'  And  where  the  law  is  restrained  by 
public  policy  from  enforcing  the  production  of  papers,  the  like 
necessity  restrains  it  from  doing  what  would  be  the  same  thing 
in  effect,  namely,  receiving  secondary  evidence  of  their  contents.^ 

1  Rex  V.  Hardy,  24  Howell's  St.  Tr.  borough,  cited  by  the  Attorney-General ; 

808-815,  per  Ld.  C.  J.  Eyre  ;  Id.  815-820.  Marbury  r.  Madison,  1  Cranch,  144. 

-  1  Phil.  Evid.  180,  181 ;  Rex  v.  Wat-  '  1  Burr's  Trial,  pp.  18G,  187,  per  Mar- 
son,  2  Stark.  R.  136 ;  32  Howell's  St.  Tr.  shall,  C.  J. ;  Gray  v.  Pentland,  2  S.  &  R. 
101;    United    States   r.   Moses,  4  Wash.  23. 

726 ;  Home  v.  Ld.  F.  C.  Uentinck,  2  B.  &  ^  Gray  v.  Pentland,  2  Serg.  &  R.  23, 

B.  130,  162,  per  Dallas,  C.  J.  31,  32,  per  Tilghman,  C.  J.,  cited  and  ap- 

3  Wyatt   V.    Gore,  Holt's   N.  P.   Cas.  proved  in  Voter  v.  Sanno,  6  Watts,  lo6, 

299.  per  Gibson,   C.  J.     In  Law  v.   Scott,  5 

•*  Cooke  V.  Maxwell,  2  Stark.  R.  183.  Har.  &  J.  438,  it  seems  to  have  been  held, 

5  Home  V.  Ld.  F.  0.  Bentinck,  2  B.  &  that  a  senator  of  the  United  States  may 

B.  130.  be  examined,  as  to  what  transi)ired  in  a 

"^  Anderson  v.  Hamilton,  2  B.  &  B.  156,  secret  executive  session,  if  the  Senate  has 

note  ;   2  Stark.  R.  185,  per  Lord  Ellen-  refused,  on  the  party's  application,  to  re- 


284 


LAW   OF   EVIDENCE. 


[part  II.       \ 


But  coinmunications,  tliougli  made  to  official  persons,  are  not 
privileged  where  they  are  not  made  in  the  discharge  of  any  public 
duty ;  such,  for  example,  as  a  letter  by  a  private  individual  to 
the  chief  secretary  of  the  postmaster-general,  complaining  of  the 
conduct  of  the  guard  of  the  mail  towards  a  passenger.^ 

§  252.  For  the  same  reason  of  public  policy,  in  the  furtlierance 
o^ ^wi^tiCG,  the  jy^oceedings  of  (/rand-jm-ors  are  regarded  as  privileged 
communications.  It  is  the  policy  of  the  law,  that  the  preliminary 
inquiry,  as  to  the  guilt  or  innocence  of  a  party  accused,  should 
be  secretly  conducted  ;  and  in  furtlierance  of  this  object  every 
grand-juror  is  sworn  to  secrecy .^  One  reason  may  be,  to  prevent 
the  escape  of  the  party,  should  he  know  that  proceedings  were  in 
train  against  him ;  another  may  be,  to  secure  freedom  of  delibera- 
tion and  opinion  among  the  grand-jurors,  which  would  l)e  impaired 
if  the  part  taken  by  each  might  be  made  known  to  tlie  accused. 
A  third  reason  may  be,  to  prevent  the  testimony  produced  before 
them  from  being  contradicted  at  the  trial  of  the  indictment,  by 
subornation  of  perjury  on  tlie  part  of  the  accused.  The  rule 
includes  not  only  the  grand-jurors  themselves,  but  their  clerk,^ 
if  they  have  one,  and  the  prosecuting  officer,  if  he  is  present  at- 
their  deliberations ;  ^  all  these  being  equally  concerned  in  the 
administration  of  the  same  portion  of  penal  law.  They  are  not 
permitted  to  disclose  who  agreed  to  find  the  bill  of  indictment, 
or  wlio  did  not  agree ;  nor  to  detail  the  evidence  on  wdiich  the 


^ 


^; 


^<* 


move  the  injunction  of  secrecy.  Sed 
qacp.re,  for  if  so,  the  object  of  the  rule,  in 
the  preservation  of  state  secrets,  may 
gcnerallv  he  defeated.  And  see  Tlunkett 
V.  Cobhett,  2'J  Howell's  Kt.  Tr.  71,  72;  5 
Esp.  lyG,  s.  0.,  where  Lord  Ellonborough 
lield,  that  though  one  member  of  parlia- 
ment may  lie  asked  as  to  the  tiict  that 
another  member  took  ])art  in  a  debate,  yet 
he  was  not  bound  to  relate  any  thing  which 
had  been  delivered  by  such  a  speaker  as  a 
member  of  parliament.  But  it  is  to  be 
observed,  that  this  was  placed  by  Lord 
EUenborough  on  the  ground  of  personal 
privilege  in  the  member;  whereas  the 
transactions  of  a  session,  after  strangers 
are  excluded,  are  placed  under  an  injunc- 
tion of  secrecy,  for  reasons  of  state. 
[*In  a  somewliat  recent  case,  Beatson  v. 
Skene,  5  II.  &  N.  838,  it  is  said  the  head 
of  the  department  will  judge  of  the  pro- 
priety of  withholding  state  secrets  in  the 
first  instaiu'e ;  and  unless  such  otHcer  refers 
the  question  to  the  court,  it  will  not  en- 


force the  disclosure  of  such  secrets  witli- 
out  very  conclusive  evidence  that  it  may 
be  done  without  prejudice  to  the  pubhc 
service.] 

1  Blake  v.  Pilford,  1  M.  &  Rob.  198. 

"  ["  The  extent  of  the  limitation  upon 
the  testimony  of  grand-jurors  is  best  de- 
fined by  the  terms  of  their  oath  of  office, 
by  which  'the  coiiimomrea/t/i's  counsel, 
their  fellows'  and  t/ieir  oini,  they  are  to 
keep  secret.'  "  By  Bigelow,  J.  Common- 
wealth V.  Hill,  11  Cush.  137,  140.] 

«  12  Vin.  Abr.  38,  tit.  Evid.  B.  a,  pi.  5 ; 
Trials  per  Pais,  315. 

*  Connuonwealth  v.  Tilden,  cited  in 
2  Stark.  Evid.  232,  note  (1),  by  Metcalf; 
McLcUan  r.  Kichard.son,  1  Sliepl.  82.  But 
on  the  trial  of  an  indictment  for  perjury, 
committed  in  giving  evidence  before  the 
grand-jury,  it  has  been  held,  that  another 
jjcrson,  who  was  present  as  a  witness  in 
the  same  matter,  at  the  same  time,  is  com- 
petent to  testify  to  what  the  j)risoner  said 
before  the  grand-jury ;  and  that  a  police- 


CHAP.  Xlll.]       EVIDENCE   EXCLUDED    FROM    PUBLIC    POLICY. 


285 


accusation  was  founded.^  But  they  may  Lc  compelled  to  state 
whether  a  particular  person  testified  as  a  witness  before  the  grand- 
jury  ;  2  though  it  seems  they  cannot  be  asked,  if  his  testimony 
there  agreed  with  what  he  testified  upon  the  trial  of  the  indictment.^ 
Grand-jurors  myy  also  Ije  asked,  whether  twelve  of  their  number 
actually  concurred  in  the  finding  of  a  bill,  the  certificate  of  the 
foreman  not  being  conclusive  evidence  of  that  fact.* 

§  252a.  On  similar  grounds  of  public  policy,  and  for  the  pro- 
tection of  parties  against  fraud,  the  law  excludes  the  testimony 
of  traverse  jurors,  when  offered  to  prove  misbehavior  in  the  jury  in 
regard  to  the  verdict.  Formerly,  indeed,  the  affidavits  of  jurors 
Irnve  been  admitted,  in  support  of  motions  to  set  aside  verdicts 
by  reason  of  misconduct ;  but  that  practice  was  broken  in  upon  by 
Lord  Mansfield,  and  the  settled  course  now  is  to  reject  them, 
because  of  the  mischiefs  which  may  result  if  the  verdict  is  thus 
placed  in  the  power  of  a  single  juryman.^ 

§  253.  There  is  a  fourth  species  of  evidence  which  is  excluded, 
namely,  that  which  is  indecent,  or  offensive  to  public  morals,  or 
injurious  to  the  feelings  or  interests  of  third  persons,  the  parties 
themselves  having  no  interest  in  the  matter,  except  what  they 
have  impertinently  and  voluntarily  created.  The  mere  indecency 
of  disclosures  does  not,  in  general,  suffice  to  exclude  them,  where 


officer  in  waiting  was  competent  for  tlie 
same  purpose ;  neitlicr  of  these  being 
sworn  to  secrecy.  Ilegina  i'.  Huglies,  1 
Car.  &  Kir.  519. 

1  Sykes  r.  Dunbar,  2  Selw.  N.  P.  815, 
[1059] ;  Huidekopcr  v.  Cotton,  3  Watts, 
56 ;  IMcLellan  v.  Richardson,  1  Shepl.  82 ; 
Low's  case,  4  Greenl.  439,  446,  453 ; 
Burr's  Tria:!  [Anon.J,  Evidence  for  Deft, 
p.  2. 

^  Sykes  v.  Dunbar,  2  Selw.  N.  P.  815, 
[1059] ;  Huidekoper  v.  Cotton,  8  Watts, 
56 ;  Treeman  v.  Arkell,  1  C.  &  P.  135, 
137,  n.  (c);  [Commonwealth  v.  Hill,  11 
Cush.  137,  140.] 

3  12  Vin.  Abr.  20,  tit.  Evidence,  II. ; 
Imlay  v.  Rogers,  2  Halst.  347.  The  rule 
in  the  text  is  applicable  only  to  civil  ac- 
tions. In  the  case  last  cited,  which  was 
trespass,  the  question  arose  on  a  motion 
for  a  new  trial,  for  the  rejection  of  the 
grand-jiu-or,  who  was  ofi'ered  in  order  to 
discredit  a  witness ;  and  the  court  'being 
equally  divided,  the  motion  did  not  pre- 
vail. Probably  such  also  was  the  nature 
of  the  case  in  Clayt.  84,  pi.  140,  cited  by 
IViner.  But  where  a  witness  before  the 
Igraud-jury  has  couunitted  perjury  in  his 


testimony,  either  before  them  or  at  the] 
trial,  the  reasons  mentioned  in  the  text 
for  excluding  the  testimony  of  grand-j 
jurors,  do  not  prevent  them  from  beint 
called  as  witnesses  after  the  first  indictj 
ment  has  been  tried,  in  order  to  establish 
the  guilt  of  the  perjured  party.  See  4 
Bl.  Coram.  126,  n.  5,  by  Christian;  1 
Chitty's  Crim.  Law,  p.  [317].  Sir  J.  Fen- 
wick's  case,  13  Howell's  St.  Tr.  610,  611; 
5  St.  Tr.  72 ;  Wharton's  Am.  Crim.  Law, 
p.  130.  By  the  Revised  Statutes  of  New 
York,  vol.  2,  p.  724,  §  31,  the  question  may 
be  asked,  even  in  civil  cases. 

4  4  Hawk.  P.  C,  b.  2,  ch.  25,  §  15; 
McLellan  v.  Richardson,  1  Shepl.  82; 
Low's  case,  4  Greenl.  439;  Common- 
wealth V.  Smith,  9  Mass.  107. 

5  Vaise  v.  Delaval,  1  T.  R.  11;  Jack- 
son V.  WiUiamson,  2  T.  R.  281 ;  Owen  v. 
Warburton,  1  New  R.  326 ;  Little  v.  Lar- 
rabee,  2  Greenl.  37,  41,  note,  where  the 
cases  are  collected.  The  State  r.  Free- 
man, 5  Conn.  348  ;  INIeade  v.  Smith,  16 
Conn.  346;  Straker  v.  Graham,  4  M.  & 
W.  721 ;  [Boston,  &c.,  R.  R.  Corp.  r.  Dana, 

I  Grav,  83,  105 ;  Folsom  v.  Manchester, 

II  Cush.  334,  337.] 


28G  LAW    OF    EVIDENCE.  [PART    II. 

the  evidence  is  necessary  for  the  purposes  of  civil  or  criminal 
justice  ;  as,  in  an  indictment  for  a  rape ;  or  in  a  question  upon 
the  sex  of  one,  claiming  an  estate  entailed,  as  heir  male  or  female  ; 
or  upon  the  legitimacy  of  one  claiming  as  lawful  heir ;  or  in  an 
action  by  the  hus])and  for  criminal  convcrsafion  with  the  wife. 
Ill  these  and  similar  cases  the  evidence  is  necessary,  either  for 
the  proof  and  punisluncnt  of  crime,  or  for  the  vindication  of 
rights  existing  before,  or  independent  of,  the  fact  sought  to  be 
disclosed.  But  where  the  parties  have  voluntarily  and  imperti- 
nently interested  themselves  in  a  question,  tending  to  violate  the 
peace  of  society,  by  exhibiting  an  innocent  third  person  to  the 
world  in  a  ridiculous  or  contemptible  light,  or  to  disturb  his  own 
peace  and  comfort,  or  to  offend  public  decency  by  the  disclosures 
which  its  decision  may  require,  the  evidence  will  not  be  received. 
Of  this  sort  are  wagers  or  contracts  respecting  the  sex  of  a  third 
person,!  or  upon  the  question  whether  an  unmarried  woman  has 
had  a  child.^  In  this  place  may  also  be  mentioned  the  declara- 
tions of  the  husband  or  wife,  that  they  have  had  no  connection, 
•  though  living  together,  and  that  therefore  the  offspring  is  spurious  ; 
which  on  the  same  general  ground  of  decency,  morality,  and 
policy,  are  uniformly  excluded.^ 

§  254.  Communications  between  husband  and  wife  belong  also 
to  the  class  of  privileged  communications,  and  arc  therefore  pro- 
tected, independently  of  the  ground  of  interest  and  identity, 
which  precludes  the  parties  from  testifying  for  or  against  each 
other.  The  happiness  of  the  married  state  requires  that  there 
should  be  the  most  unlimited  confidence  between  husband  and 
wife;  and  this  confidence  the  law  secures,  by  providing  that  it 
shall  be  kept  for  ever  inviolable ;  that  nothing  shall  be  extracted 
from  the  bosom  of  the  wife,  which  was  confided  there  by  the 
luisband.  Tlierefore,  after  the  parties  are  separated,  whether  it 
be  by  divorce  or  by  the  death  of  the  husband,  the  wife  is  still 
precluded  from  disclosing  any  conversations  with  him;  though 
she  may  be  admitted  to  testify  to  facts  which  came  to  her  knowl- 

1  Da  Costa  v.  Jones,  Cowp.  729.  ^  Goo(lri<rlit  v.  Moss,  Cowp.  594,  said, 

2  Ditclihurn  v.  Goldsmith,  4  Campb.  per  Lord  Mansfield,  to  liave  been  solemnly 
152.  If  the  subject  of  the  action  is  trivo-  decideil  at  tlie  Delegates.  Cope  v.  Cope, 
lous,  or  the  question  imjiertinent,  and  this  1  M.  &  Kob.  209,  ])«•  Alderson,  J. ;  Rex 
is  apparent  on  the  record,  tlie  court  will  v.  Book,  1  Wils.  340;  Kex  ?;.  Lufl^e,  8 
not  proceed  at  all  in  the  trial.  Brown  v.  East,  193,  202,  203;  Rex  v.  Kea,  11  East, 
Leeson,  2  H.  Bl.  43;  lienkin  v.  Gerss,  2  132;  Commonwealth  u.  Shepherd,  6  Binn. 
Campb.  408.  283. 


i 


CHAP.  XIII.]      EVIDENCE   EXCLUDED   FROM    PUBLIC   POLICY. 


287 


edge  by  means  equally  accessible  to  any  person  not  standing  in 
that  relation.!  Their  general  incompetency  to  testify  for  or  against 
each  other  will  be  considered  hereafter,  in  its  more  appropriate 
place. 

§  254a.  It  may  be  mentioned  in  this  place,  that  though  papers 
and  other  subjects  of  evidence  may  have  been  illegally  taken  from 
the  possession  of  the  party  against  whom  they  are  offered,  or 
otherwise  unlawfully  obtained,  this  is  no  valid  objection  to  their 
admissibility,  if  they  are  pertinent  to  the  issue.  The  court  will 
not  take  notice  how  they  were  obtained,  whether  lawfully  or  un- 
lawfully, nor  will  it  form  an  issue,  to  determine  that  question.^ 


1  Monroe  r.  Twistleton,  Pcake's  Evid. 
App.  Ixxxii.  as  explained  by  Lord  Ellen- 
borough  in  Aveson  v.  Lord  Kinnaird,  6 
East,  19-2,  193 ;  Doker  v.  Ilasler,  Ry.  & 
!M.  198  ;  Stein  v.  Bowman,  13  I'eters,  R. 
209,  223;  Coffin  v.  Jones,  13  Pick.  441, 
445 ;  Edgell  v.  Bennett,  7  Verm.  R.  536 ; 
Williams  v.  Baldwin,  Id.  503,  506,  per 
Royce,  J.  In  Beveridi>e  v.  Minter,  1  C. 
&  r.  364,  wliere  the  widow  was  permitted 
by  Abbott,  C.  J.,  to  testify  to  certain  ad- 
missions of  her  deceased  husband,  relative 
to  the  money  in  question,  this  point  was 
not  considered,  the  objection  being  placed 
■wholly  on  the  ground  of  her  interest  in 
the  estate.  See  also  2  Kent,  Comm.  180; 
2  Stark.  Evid.  399;  Robbins  v.  Iving,  2 


Leigh's  R.  142,  144.  See  further,  infra, 
§  333-345 ;  [Smith  v.  Potter,  1  Williams, 
304 ;  Goltra  v.  Wolcott,  14  111.  89 ;  Stein 
V.  Weidman,  20  Mis.  17.  In  an  action  on 
the  case  brought  by  a  husband  for  crimi- 
nal conversation  with  his  wife,  the  latter, 
after  a  divorce  from  the  bonds  of  matri- 
mony obtained  subsequent  to  the  time  of 
the  alleged  criminal  intercourse,  is  a  com- 
petent witness  for  the  plaintifi'  to  prove 
the  charge  in  the  declaration.  Dicker- 
man  V.  Graves,  6  Cush.  808 ;  RatclitF  v. 
WaJes,  1  Hill,  63.] 

2  Commonwealth  v.  Dana,  2  Met.  829, 
337  ;  Leggett  v.  Tollervey,  14  East,  302 ; 
Jordan  v.  Lewis,  Id.  306,  note. 


i 


LAW   OP   EVIDENCE.  [PART   II. 


CHAPTEK    XIV. 

OF   THE   NUMBER   OF   WITNESSES,   AND   THE   NATURE   AND   QUANTITY    OF 
PROOF   REQUIRED   IN   PARTICULAR   CASES. 

[  *  §  255.  Two  witnesses  required  to  same  overt  act  of  treason,  or  to  distinct  acts  of 
same  species. 

256.  Proof  restricted  to  overt  acts  laid  in  indictment. 

257.  In  trials  for  perjury  more  is  required  than  the  evidence  of  one  witness. 
257a.  And  the  rule  applies  to  each  separate  specification. 

258.  It  is  not  indispensable  that  any  witness  swear  to  the  falsity.     Other  proof 

may  be  svifficient. 

259.  Mere  contradiction  in  prisoner's  statements  not  sufficient. 

260.  An  answer  in  chancery  requires  more  than  the  testimony  of  one  witness  to 

overcome  it. 
260a.  General  usage  should  be  proved  by  more  than  one  witness. 

261.  Written  documents  required  to  effect  transmission  of  title  in  certain  cases. 

262.  Statute  of  frauds  requires  written  evidence  in  some  cases. 

263.  This  embraces  all  sales  of  land  or  of  any  interest  therein. 

264.  Assignments  or  surrenders  must  also  be  in  writing,  &c. 

265.  Destruction  of  deed  will  not  revest  the  title. 

266.  All  trusts  except  resulting  trusts  must  be  evidenced  by  writing. 

267.  This  statute  embraces  sundry  other  contracts. 

268.  Form  of  contract  or  mode  of  signature  not  important. 

269.  Power  of  agent  need  not  be  in  writing.     Auctioneer,  agent  of  both  parties. 

270.  Land  embraces  all  interests  and  rights  pertaining  thereto. 

271.  Sale  of  things  attached  to  land,  without  any  use  of  land,  not  an  interest  in 

the  land. 

272.  Devises  of  land  required  by  the  statute  to  be  in  writing,  and  witnessed  by 

three  witnesses. 

273.  AVhat  amounts  to  valid  revocation  of  will. 

274.  Indentures  of  apprenticeship  required  to  be  in  writing.] 

§  255.  Under  this  head  it  is  not  proposed  to  go  into  an  extended 
consideration,  of  the  statutes  of  treason,  or  of  frauds,  but  only  to 
mention  Itriefly  some  instances  in  wliich  tliosc  statutes,  and  some 
other  rules  of  law,  have  regulated  particular  cases,  taking  them 
out  of  tlie  operation  of  the  general  principles,  by  which  they  would 
otherwise  be  governed.  Thus,  in  regard  to  treasons  though^  by 
the  common  law  the  crime  was  sufheiently  proved  by  one  credible 


CHAP.  XIV.] 


NUMBER   OF   WITNESSES. 


289 


witness,^  yet,  considering  tlic  great  weight  of  the  oath  or  duty  of 
allegiance,  against  the  probability  of  the  fact  of  treasoii^^  it  has 
been  deemed  expedient  to  provide,-^  that  no  person  shall  be  in- 
dicted or  convicted  of  high  treason,  but  upon  the  oaths  and  testi- 
mony of  two  witnesses  to  the  same  overt  act,  or  to  separate  overt 
acts  of  the  same  treason,  unless  upon  his  voluntary  confession  in 
open  court.  We  have  already  seen  that  a  voluntary  confession 
out  of  court,  if  proved  by  two  witnesses,  is  sufficient  to  warrant  a 
conviction  ;  and  that  in  England  the  crime  is  well  proved  if  there 
be  one  witness  to  one  overt  act,  and  another  witness  to  another 
overt  act,  of  the  same  species  of  treason.*  It  is  also  settled  that 
when  the  prisoner's  confession  is  offered,  as  corroborative  of  the 
testimony  of  such  witnesses,  it  is  admissible,  though  it  be  proved 
by  only  one  witness ;  the  law  not  having  excluded  confessions, 
proved  in  that  manner,  from  the  consideration  of  the  jury,  but 
only  provided  that  they  alone  shall  not  be  sufficient  to  convict  the 
prisoner.^  And  as  to  all  matters  merely  collateral,  and  not  con- 
ducing to  the  proof  of  the  overt  acts,  it  may  be  safely  laid  down 
as  a  general  rule,  that  Avhatever  was  evidence  at  common  law, 
is  still  good  evidence  under  the  express  constitutional  and  statu- 
tory provision  above  mentioned.^ 


1  Foster's  Disc.  p.  233 ;  Wooflbeck  v. 
Keller,  G  Cowen,  120;  McNally's  Evid. 
31. 

2  This  is  conceived  to  be  the  true  foun- 
dation on  which  the  rule  has,  in  modern 
times,  been  enacted.  The  manner  of  its 
first  introduction  into  the  statutes  was 
thus  stated  by  the  Lord  Chancellor,  in 
Lord  Htatlbrd's  case,  T.  Raym.  408. 
"  Upon  this  occasion,  my  Lord  Chancel- 
lor, in  the  Lords  House  was  ])leased  to 
con)municate  a  notion  concernini;-  tlie  rea- 
son of  two  witnesses  in  treason,  which  he 
said  was  not  ver3'  familiar,  lie  believed ; 
and  it  was  this  :  anciently  all  or  nu)st  of 
tlie  judges  were  churchmen  and  ecclesias- 
tical ))ersons,  and  by  tlie  canon  law  now, 
and  tlien,  in  use  all  over  the  Christian 
world,  none  can  be  condeiimed  of  heresy 
but'ljy  two  lawful  and  credible  witnesses; 
and  hare  words  may  make  a  heretic,  but 
not  a  traitor,  and  anciently  heresy  was 
treason  ;  and  from  thence  the  parliament 
thought  fit  to  appoint  that  two  witnesses 
ou^ht  to  be  for  jiroof  of  high  treason." 

^  This  was  done  by  Stat.  7  W.  III.  c. 
3,  §  2.  Two  witnesses  were  required  by 
the  earlier  statutes  of  1  Ed.  VI.  c.  12,  and 
5  &  0  Ed.  VI.  c.  11 ;  in  the  construction 


of  which  statutes,  the  rule  afterwards  de- 
clared in  Stat.  7  W.  III.  was  adopted.  See 
Kex  V.  Ld.  Stafford,  T.  Raym.  407.  The 
Constitution  of  the  United  States  pro- 
vides that — "  No  person  shall  be  convic- 
ted of  treason  unless  on  the  testimony  of 
two  witnesses  to  the  same  overt  act,  or 
on  confession  in  open  court."  Art.  3,  §  3, 
LL.  U.  S.  vol.  2,  ch.  36,  §  1.  This  provi- 
sion has  been  adopted,  in  terms,  in  many 
of  the  state  constitutions.  But  as  in 
many  other  states  there  is  no  express  law 
requiring-  that  the  testimony  of  both  wit- 
nesses should  be  to  t/ie  same  overt  act,  the 
rule  stated  in  the  text  is  conceived  to  be 
that  which  would  govern  in  trials  for  trea- 
son against  those  states  ;  tliough  in  trials 
in  the  other  states,  and  for  treason  against 
the  United  States,  the  constitutional  pro- 
vision would  confine  the  evidence  to  the 
same  overt  act. 

*  Siipni,  §  235,  n. ;  Lord  Stafford's 
case,  7  Howell's  St.  Tr.  1527 ;  Foster's 
Disc.  237  ;  1  Burr's  Trial,  LIB. 

"  Willis's  case,  15  Howell's  St.  Tr. 
623,024,(125;  t^rossfield's  case,  26  How- 
eU's  St.  Tr.  55, 56,  57  ;  Foster's  Disc.  241. 

6  Supra,  §  235;  Foster's  Disc.  240, 
242;   1  East,  P.  C.  130. 


25 


290  LAW    OF    EVIDENCE.  [PART  II. 

§  2.')C).  It  maj  be  proper  in  this  place  to  observe,  that  iu  treason, 
the  rule  is  that  no  evidence  can  be  given  of  any  overt  act,  which 
is  not  exjwessly  laid  in  the  indictment.  But  the  meaning  of  the 
rule  is,  not  that  the  whole  detail  of  Tacts  should  be  set  forth,  but 
tliat  no  overt  act,  amounting  to  a  distinct  inde})endent  charge, 
thougli  falling  under  the  same  head  of  treason,  shall  be  given  in 
evidence,  unless  it  be  expressly  laid  in  the  indictment.  If,  how- 
ever,  it  will  conduco  to  the  proof  of  any  of  the  overt  acts  which 
are  laid,  ii  nmy  lie  ndmitted  as  evidence  of  such  overt  acts.^  This 
rule  is  not  j)eculiar  to  prosecutions  for  treason ;  tTiough,  in  conse- 
quence of  the  oppressive  character  of  some  former  state  prosecu- 
tions for  that  crime,  it  has  been  deemed  expedient  expressly  to 
enact  it  in  the  later  statutes  of  treason.  It  is  nothing  more  than 
a  particular  application  of  a  fundamental  doctrine  of  the  law  of 
remedy  and  of  evidence,  namely,  that  the  proof  must  correspond 
with  the  allegations,  and  be  confined  to  the  point  in  issue.^  This 
issue,  in  treason,  is,  whether  the  prisoner  committed  that  crime, 
by  doing  the  treasonable  act  stated  in  the  indictment ;  as,  in  slan- 
der, the  question  is,  whether  the  defendant  injured  the  plaintifif 
by  maliciously  uttering  the  falsehoods  laid  in  the  declaration  ; 
and  evidence  of  collateral  facts  is  admitted  or  rejected  on  the  like 
principle  in  either  case,  accordingly  as  it  does  or  does  not  tend  to 
establish  the  si^ecific  charge.  Therefore  the  declarations  of  the 
prisoner,  and  seditious  language  used  by  him,  are  admissible  in 
evidence  as  explanatory  of  his  conduct,  and  of  the  nature  and 
object  of  the  conspiracy  in  which  he  was  engaged.^  And  after 
proof  of  the  overt  act  of  treason,  in  the  county  mentioned  in  the 
indictment,  other  acts  of  treason  tending  to  prove  the  overt  acts 
laid,  though  doiie  in  a  foreign  country,  may  be  given  in  evidence.^ 

^^T'\n  prooTlrfsJthe  crime  of  perjury,  also,  it  was  formerly 
held  that  two  witnesses.were  necessary,  because  otlierwise  there 
would  be  nothing  more  than  the  oath  of  one  man  against  another, 
u})on  which  the  jury  could  not  safely  convict.^     But  this  strictness 


1  Foster's  Disc.  p.  245 ;  1  Phil.  Evid.  *  Deacon's  case,  16  Ilowell's  St.  Tr. 
471;  Deacon's  case,  18  Howell's  St.  Tr.  807;  Foster,  K.  9,  s.  c.  ;  Sir  Henry 
36H ;  Foster,  K.  9,  s.  c. ;  Itesicide's  case.  Vane's  case,  4th  res.,  6  Howell's  St.  Tr. 
J.  Kelv.  8,  9 ;  1  East,  V.  C.  121,  122, 123  ;  123,  129,  n. ;  1  East,  P.  C.  125,  12G.  [Sec 
2  Stark.  Evid.  800,  801.  post,  vol.  3,  {4th  edit.)  246-248.] 

2  Supra,  §§  51,  52,  53.  6  1  Stark.  Evid.  443;  4  Hawk.  P.  C, 
8  lie.x  V.  Watson,  2  Stark.  Tl.  116, 134;  b.  2,  c.  46,  §  10;   4  Bl.   Comm.  358;  2 

[United  States  v.  llanway,  2  Wallace,  Jr.  Russ.  on  Crimes,  1791. 
139.1 


CHAP.  XIV.] 


NUMBER   OF   WITNESSES. 


291 


lugs  long  since  been  relaxed  j^  the  true  principle  of  the  rule  being 


merely  this,  that  the  evidence  must  be  something  more  than  suffi- 
cient to  counterbalance  the  oath  of  the  prisoner,  mikI  the  legal 
prcsuny)tion  of  his'innoccnce.i  The  oath  of  the  opposing  witness, 
therefore,  will  not  avail,  iniless  it  be  corrolxjrated  by  other  inde- 
pendent circumstances.  But  it  is  not  precisely  accurate  to  say, 
that  these  additional  circumstances  must  be  tantiunount  to  another 
witness.  The  same  effect  being  given  to  the  oath  of  the  prisoner, 
as  though  it  were  the  oath  of  a  credible  witness,  the  scale  of  evi- 
dence is  exactly  balanced,  and  the  equilibrium  must  be  destroyed, 
by  material  and  independent  circumstances,  before  the  party  can 
be  convicted.     The  additional  evidence  needs  not  be   such   as 


standing  by  itself,  would  justify  a  conviction  in  a  case  where  the 
testimony  of  a  single  witness  would  suffice  for  that  purpose.  But 
it  nuist  be  at  least  strongly  corroborative  of  tlie  testimony  of  the 
accusing  witness ;  ^  or,  in  the  quaint  but  energetic  language  of 
Parker,  C.  J.,  "  a  strong  and  clear  evidence,  and  more  numerous 
than  the  evidence  aiven  for  the  defendant."  ^ 


:<i 


^  The  history  of  this  relaxation  of  the 
sternness  of  the  old  rule  is  thus  stated  by 
Mr.  Justice  Wayne,  in  delivering  the 
opinion  of  the  court  in  The  United  States 
V.  Wood,  U  Peters,  440,  441.  "  At  first, 
two  witnesses  were  required  to  convict  in 
a  case  of  perjury  ;  both  swearing  directly 
adversely  from  the  defendant's  oath.  Con- 
temporaneously with  this  requisition,  tlie 
larger  number  of  witnesses  on  one  side  or 
the  other  prevailed.  Then  a  single  wit- 
ness, corroborated  by  other  witnesses, 
swearing  to  circumstances  bearing  directly 
upon  the  imputed  corpus  cfelicti  of  a  defen- 
dant, was  deemed  sutfioient.  Next,  as  in 
the  case  of  Hex  v.  Knill,  5  B.  &  A.  929, 
n.,  with  a  long  interval  between  it  and 
the  preceding,  a  witness,  who  gave  proof 
only  of  tlie  contradictory  oaths  of  the  de- 
fendant on  two  occasions,  one  being  an 
examination  before  the  House  of  Lords, 
and  the  other  an  examination  before  tiie 
House  of  Commons,  was  held  to  be  suffi- 
cient; though  this  principle  had  been  act- 
ed on  as  early  as  1 704,  by  Justice  Yates, 
as  may  be  seen  in  the  note  to  the  case  of 
The  King  v.  Harris,  5  B.  &  A.  937,  and 
was  acquiesced  in  by  Lord  Mansfield,  and 
Justices  Wilmot  and  Aston.  We  are 
aware  that,  in  a  note  to  Bex"  v.  May- 
hew,  G  C.  &  P.  315,  a  doubt  is  implied 
concerning  the  case  decided  by  Justice 
Yates  ;  but  it  lias  the  stamp  of  authen- 
ticity, from  its  having  been  refen-ed  to  in 


a  case  happening  ten  years  afterM'ards  be- 
fore Justice  Cliambre,  as  will  appear  by 
the  note  in  G  B.  &  A.  937.  Afterwards,  a 
single  witness,  with  tlie  defendant's  bill 
of  costs  (not  sworn  to)  in  lieu  of  a  second 
witness,  delivered  by  the  detendant  to  the 
prosecutor,  was  held  sufficient  to  contra- 
dict his  oath  ;  and  in  that  case  Lord  Den- 
man  says,  '  A  letter  written  by  the  defen- 
dant, conti-adicting  his  statement  on  oath, 
would  be  sutticient  to  make  it  unnecessary 
to  have  a  second  witness.'  G  C.  &  P.  315. 
We  thus  see  tiiat  this  rule,  in  its  proper 
application,  has  been  expanded  beyond  its 
literal  terms,  as  cases  have  occurred  in 
which  proofs  have  been  ottered  equivalent 
to  tlie  end  intended  to  be  accomplished 
by  the  rule." 

2  AVoodbeck  v.  Keller,  6  Cowen,  118, 
121,  per  Sutherland,  J. ;  Champney's  case, 
1  Lew.  Cr.  Cas.  258.  And  see  infra,  § 
381. 

3  The  Queen  v.  Muscot,  10  Mod.  194. 
See  also  The  State  v.  Molier,  1  Dev.  263, 
265;  The  State  v.  Havward,  1  Nott.  & 
McCord,  547  ;  Bex  v.  Mayhew,  6  C.  &  F. 
315;  Beg.  r.  Boulter,  16  Jur.  135;  Boscoe 
on  Crim.  Evid.  G8G,  G87 ;  Clark's  Execu- 
tors c.  Van  Beimsdyk,  9  Cranch,  IGO.  It 
must  corroborate  liini  in  something  more 
than  some  slight  particulars.  Beg.  v. 
Yates,  1  Car.  &  Marsh.  139.  More  re- 
cently, corroborative  evidence,  in  cases 
where  more  than  one  witness  is  required 


292  LAW   OF    EVIDENCE.  ,  [PART   II. 

§  2.37<r.  "When  there  are  several  assignments  of  perjury  in  the 
same  indictment,  it  does  not  seem  to  be  clearly  settled,  "whether, 
in  addition  to  the  testimony  of  a  single  witness,  there  must  be 
corroborative  proof  with  respect  to  each ;  but,  the  better  (^jinion 
is,  that  such  proof  is  necessary ;  and  that  too,  although  all  the 
perjuries  assigned  were  committed  at  one  time  and  place. ^  For 
instance,  if  a  person,  on  putting  in  his  schedule  in  the  insolvent 
debtor's  court,  or  on  other  the  like  occasion,  has  sworn  that  he 
has  paid  certain  creditors,  and  is  then  indicted  for  perjury  on 
several  assignments,  each  specifying  a  particular  creditor  who  lias 
not  been  paid,  a  single  witness  with  respect  to  each  debt  will  not, 
it  seems,  suffice,  though  it  may  be  very  ditTicult  to  obtain  any 
fuller  evidence .2 

§  258.  The  principle  that  one  witness  with  corroborating  cir- 
cumstances is  sufficient  to  establish  the  charge  of  peijury,  leads 
to  the  conclusion  that  circumsta^ices,  without  any  witness,  when 
they  exist  in  documentary  or  written  testimony,  may  combine  to 
tlie  same  effect ;  as  they  may  combine,  altogether  unaided  by  oral 
proof,  except  the  evidence  of  their  authenticity,  to  prove  any  other 
fact,  connected  with  the  declarations  of  persons  or  the  business 
of  human  life.  The  principle  is,  that  circumstances  necessarily 
make  a  part  of  the  proofs  of  human  transactions ;  that  such  as 
have  been  reduced  to  writing,  in  uiuMjuivocal  terms,  when  the 
writing  lias  l^ecn  proved  to  be  authentic,  cannot  be  made  more 
certain  by  evidence  aliunde;  and  that  such  as  have  not  been 
reduced  to  writing,  Avhether  they  relate  to  the  declarations  or 
conduct  of  men,  can  only  be  proved  by  oral  testimony.  Accord- 
ingly, it  is  now  held  that  a  living  witness  of  the  corpus  delicti  may 
be  dispensed  with,  and  documentary  or  written  evidence  be  relied 
upon  to  convict  of  perjury, — first,  where  the  falsehood  of  the 
matter  sworn  by  the  prisoner  is  directly  proved  by  documentary 
or  written  evidence  springing  from  himself,  with  circumstances 

by  law,  b.'is  boon  defined  by  Dr.  Lusliinc:-  i  "R.  ?-.  Virrier,  12  A.  &  E.  317,  324,  per 

ton,  to  be  not  merely  evidence  sbowing  Ld.  Dennian. 

tbilt  tbe  account  is  probable,  but  evidence,  ■^  R.  v.  Parker,  C.  &  Marsh.  639,  G45- 

provitif,'  facts  (jnsdcm  (jencris,  and  tending  647,  per  Tindal,  C.  J.     In  R.  v.  Mudie, 

to  produce  the  same  results.     Simmons  v.  1  ]\I.  &  Rob.  128,  129,  Lord  Tenterden, 

Simmons,   11  Jur.   8o0.      See  further  to  under   similar  circumstances,  refused   to 

this  point,  Reg.  v.  Parker,  C.  &  Marsh,  stop  the  ease,  saying  that,  if  the  defend- 

616;   Reg.  v.  Champney,  2  Lewin,  258;  ant  was  convicted,  he  might  move  for  a 

Reg.  V.  Gardiner,  8  C.  &  P.  737;  Reg.  v.  new  trial.     lie  was,  liowever,  acquitted. 

Roberts,  2  Car.   &  Kir.   614.     [See  pos<,  See  the  (London)  Law  Review,  &c.,  May, 

vol.  3  (4th  edit.),  §  198.)  1846,  p.  128. 


CHAP.  XIV.]  NUMBER   OF   WITNESSES.  293 

showing  tlie  corrupt  intent ;  secondly/,  in  cases  where  the  matter 
so  sworn  is  contradicted  by  a  public  record,  proved  to  liave  been 
well  known  by  the  prisoner  when  he  took  the  oath,  the  oath  only 
being  proved  to  have  been  taken  ;  and  thlrdl}/,  in  cases  wliere  the 
party  is  charged  with  taking  an  oath,  contrary  to  what  he  must 
necessarily  have  known  to  be  true ;  the  falsehood  being  shown 
by  his  own  letters  relating  to  the  fact  sworn  to,  or  by  any  other 
written  testimony,  existing  and  being  found  in  his  possession,  and 
which  has  been  treated  by  him  as  containing  the  evidence  of  the 
fact  recited  in  it.^ 

§  259.  if  the  evidence  adduced  in  proof  of  the  crime  of  perjury 
consists  of  two  opposing  statements  of  tKe  prisoner,  and  nothing 
niQ|S;^_lie_cannpt  be  convicted.  For  if  one  only  was  delivered 
under  oath,  it  must  be  presumed,  from  the  solemnity  of  the  sanc- 
tion, that  that  declaration  was  the  truth,  and  the  other  an  error  or 
a  falsehood ;  though  the  latter,  being  inconsistent  with  what  he 
has  sworn,  may  form  important  evidence,  with  other  circumstances, 
against  him.  And  if  both  the  contradictory  statements  were 
delivered  under  oath,  there  is  still  nothing  to  show  which  of  them 
is  false,  where  no  other  evidence  of  the  falsity  is  given.^  If,  in- 
deed, it  can  be  shown  that,  before  giving  the  testimony  on  which 
perjury  is  assigned,  the  accused  had  been  tampered  with ;  ^  or,  if 
there  be  other  circumstances  in  the  case,  tending  to  prove  that 
the  statement  offered  in  evidence  against  the  accused  was  in  fact 
true,  a  legal  conviction  may  be  obtained.*  And  "  although  the 
jury  may  believe  that  on  the  one  or  the  other  occasion  the  prisoner 
swore  to  what  was  not  true,  yet  it  is  not  a  necessary  consequence 
that  he  committed  perjury.  For  there  are  cases  in  which  a  person 
might  very  honestly  and  conscientiously  swear  to  a  particular  fact, 
from  the  best  of  his  recollection  and  belief,  and  from  other  circum- 

1  Tlie  United  States  v.  Wood,  14  Pe-  combination  between  tliem  to  defraud  the 

ters,  440,  441.     In  this  case,  under  the  United  States,  by  invoicing  and  entering 

latter  head  of  the  rule  here  stated,  it  was  the  goods  shipped  at  less  than  their  actual 

held,  that,  if  the  jury  were  satistied  of  the  cost. 

corrupt  intent,  the  prisoner  miglit  well  be  *  ^  ggg  Alison's  Principles  of  the  Crimi- 
convicted  of  penary,  in  taking,  at  the  nal  Law  of  Scotland,  p.  481.  Eegina  v. 
custom-house  in  New  York,  the  "  owner's  Hughes,  1  C.  &  K.  51U ;  Kegina  v.  Wheat- 
oath  in  cases  where  goods,  wares,  or  mer-  land,  8  C.  &  P.  238 ;  Kegina  i^.  Chanipney, 
chandise  have  been  actually  purchased,"  2  Lew.  258. 

upon  the  evidence  of  the  invoice-hook  of  ^  Anon.  5  B.  &  A.  939,  940,  note.   And 

his  fatiier,  John  Wood,  of  Saddleworth,  see  2  Kuss.  Cr.  &  M.  653,  note. 
England,  and  of  thirty-five  letters  from  *  Rex  v.  Kuill,  5  B.   &  A.  929,  930, 

the  prisoner  to  his  father,  disclosing  a  note. 

25* 


294 


LAW   OF  EVIDENCE. 


[part  II. 


stances  subsequently  be  convinced  that  he  was  "WTong,  and  swear 
to  the  reverse,  without  meaning  to  swear  falsely  either  time.^ 

§  200.  The  principles  above  stated,  in  regard  to  the  proof  of 
perjury,  apply  with  equal  force  to  the  case  of  an  answer  in  chancery. 
Formerly,  wlicn  a  material  fact  was  directly  put  in  issue  by  the 
answer,  the  courts  of  equity  followed  the  maxim  of  the  Roman 
law,  responsio  unlus  non  oinnhw  audiatur,  and  required  the  evidence 
of  two  witnesses,  as  the  foundation  of  a  decree.  Bnt  of  late  years 
tlie  rule  has  been  referred  more  strictly  to  the  equitable  principle 
on  which  it  is  founded,  namely,  the  right  to  credit  which  the 
defendant  may  claim,  equal  to  that  of  any  other  witness  in  all 
cases  where  his  answer  is  "  positively,  clearly,  and  precisely  "  re- 
sponsive to  any  matter  stated  in  the  bill.  For  the  plaintiff,  by 
calling  on  the  defendant  to  answer  an  allegation  which  he  makes, 
thereby  admits  the  answer  to  be  evidence.^  In  such  case,  if  the 
defendant  in  express  terms  negatives  the  allegations  in  the  bill, 
and  the  bill  is  supported  by  the  evidence  of  only  a  single  witness, 
affirming  what  has  been  so  denied,  the  court  will  neither  make 
a  decree,  nor  send  the  case  to  be  tried  at  law ;  but  will  simply 
dismiss  the  bill.'^  But  the  corroborating  testimony  of  an  additional 
witness,  or  of  circumstances,  may  give  a  turn  either  way  to  the 
balance.  x\.nd  even  the  evidence  arising  from  circumstances  alone 
may  be  stronger  than  the  testimony  of  any  single  witness.* 


^  Per  Holroyd,  J.,  in  Jackson's  case,  1 
Lewin's  Cr.  Cas.  270.  This  very  reason- 
able doctrine  is  in  perfect  accordance  with 
the  rule  of  the  Criminal  Law  of  Scotland, 
ius  laid  down  by  Mr.  Alison,  in  his  lucid 
and  elegant  treatise  on  that  subject,  in  the 
following  terms  :  "  When  contradictory 
anil  inconsistent  oaths  have  been  einirted, 
the  mere  contradiction  is  not  decisive  evi- 
dence of  the  existence  of  perjury  in  one 
or  other  of  them  ;  but  the  prosecutor  must 
establish  which  was  the  true  one,  and 
libel  on  the  other  as  containing  the  false- 
hood. Where  depositions  contradictory 
to  each  other  have  been  emitted  by  the 
same  person  on  the  same  matter,  it  may 
with  certainty  be  concluded  that  one  or 
other  of  them  is  lalse.  IJut  it  is  not  rele- 
vant to  infer  piMJury  in  so  loose  a  maimer  ; 
but  the  prosecutor  must  go  a  step  farther, 
and  specify  distinctly  which  of  the  two 
contains  the  falsehood,  and  peril  his  case 
ujjon  the  means  he  ])ossesses  of  proving 
perjury  in  that  deposition.  To  admit  the 
opposite  course,  and  allow  the  prosecutor 
to  libel  on  both  deiJositious,  and  make  out 


his  charge  by  comparing  them  together, 
without  distinguishing  which  contains  the 
truth  and  which  the  falsehood,  would  be 
directly  contrary  to  the  precision  justly 
required  in  criminal  proceedings.  In  the 
older  practice  this  distinction  does  not 
seem  to  have  been  distinctly  recognized ; 
but  it  is  now  justly  considered  indispen- 
sable, that  the  perjury  should  be  specified 
e.xisting  in  one,  and  the  other  deposition 
referred  to  in  modnin  probatioitis,  to  make 
out,  along  with  other  circumstances,  where 
the  truth  really  lay."  See  .iUisou's  Crim. 
Law  of  Scotland,  p.  475. 

■■^  Gresley  on  Evid.  p.  4. 

"  Cooth  V.  Jackson,  6  Ves.  40,  per  Ld. 
Eldon. 

*  Pember  v.  Mathers,  1  Bro.  Ch.  R. 
52;  2  Story  on  Ktp  Jur.  §  1528;  Gresley 
on  Evid.  p.  4 ;  Clark  v.  Van  Reimsdyk,  9 
Cranch,  100;  Keys  v.  Williams,  3  Y.  &  C. 
55;  Dawson  v.  Massev,  1  Ball  &  Beat. 
234;  Maddox  v.  Sullivan,  2  Rich.  Eq.  II. 
4.  Two  witnesses  are  retiuired,  in  ^fis- 
souri,  to  prove  the  handwriting  of  a  de- 
ceased subscribing  witness  to  a  deed;  when 


CHAP.  XIY.] 


NUMBER   OF   WITNES^S. 


295 


§  260a.  It  has  also  been  hold,  that  the  testimony  of  one  witness 
alone  is  not  sufficient  to  establish  any  usa(/e  of  trade,  of  wliich  all 
dealers  in  that  particular  line  are  bound  to  take  notice,  and  are 
presumed  to  be  informed.^     [*Tlic  manner  in  which  the  rule  is 


all  the  subscribing  witnesses  are  rlearl,  or 
cannot  be  hiul,  and  the  deed  is  ofJered  to 
a  court  or  niajjistrate  for  probate,  prepara- 
tory to  its  registration.  Kev.  Stat.  1835, 
p.  121 ;  Id.  1845,  eh.  32,  §  22;  i»fra,  §  509, 
note.  Two  witnesses  are  also  required  to 
a  deed  of  conveyance  of  real  estate,  by 
the  statutes  of  A^tw  Hanijishire,  Vermont, 
Ccniiecticut,  Georgia,  Florida,  Ohio,  Michi- 
gan, and  Arkansas.  See  4  Cruise's  Diijest, 
tit.  32,  ch.  2,  §  77,  note,  (Greenleaf's 
edit.)  [2d  edit.  (185G),  vol.  2,  p.  341.] 
And  in  Coumdicut,  it  is  enacted,  that  no 
person  shall  be  convicted  of  a  capital 
crime,  without  the  testimony  of  two  wit- 
nesses, or  what  is  equivalent  thereto. 
Eev.  Stat.  184'J,  tit.  6,  §  15'J.  [See  post, 
vol.  3,  §  289  and  notes.  Rinkle  v.  "Wan- 
zer,  17  How.  U.  S.  353 ;  Lawton  v.  Kit- 
tredge,  10  Foster,  50U;  Ing  v.  Brown,  3 
Md.  Ch.  Decis.  521 ;  Glen  v.  Grover, 
3  Md.  212;  Jordan  v.  Fenno,  8  Eng.  593; 
Johnson  v.  McGruder,  15  JNlis.  365 ;  Wal- 
ton V.  Walton,  17  lb.  376  ;  White  v.  Crew, 
16  Geo.  416;  Calkins  v.  Evans,  5  Ind. 
441.] 

1  Wood  V.  Hickock,  2  Wend.  501; 
Parrott  v.  Thaclier,  9  Pick.  426 ;  Thomas 
V.  Graves,  1  Const.  Rep.  150,  [308] ;  post, 
vol.  2  [7th  edit.],  §  252  [and  notes.]  As 
attempts  have  been  made  in  some  recent 
instances,  to  introduce  into  Ecclesiastical 
councils  in  the  United  States  the  old  and 
absurd  rules  of  the  Canon  law  of  England, 
foreign   as   they   are   to   the   nature   and 


genius  of  American  institutions,  the  fol- 
lowing statement  of  tiie  light  in  which 
those  rules  are  at  present  regarded  in 
England  will  not  be  unacceptable  to  the 
reader.  It  is  taken  from  the  (London) 
Law  Keview,  &c.,  for  IMay,  1846,  jij).  132- 
135.  "  Li  the  Ecclesiastical  courts,  the 
rule  requiring  a  plurality  of  witnesses  is 
carried  far  beyond  the  verge  of  common 
sense ;  and  altliough  no  recent  decision  of 
those  courts  has,  we  believe,  been  pro- 
nounced, expressly  determining  that  five, 
seven,  or  more  witnesses,  are  e.-<sential  to 
constitute  full  proof,  yet  the  authority  of 
Dr.  Aylitfe,  who  states  that,  according  to 
the  Canon  law,  this  amount  of  evidence 
is  required  in  some  matters,  has  been 
very  lately  cited,  with  apparent  assent,  if 
not  approbation,  b}'  the  learned  Sir  Her- 
bert Jenner  Fust.i  The  case  in  support 
of  which  the  above  high  authority  was 
quoted  was  a  suit  for  divorce.-  In  a  pre- 
vious action  for  criminal  conversation,  a 
special  jury  had  given  £500  damages  to 
the  husband,  who,  with  a  Jlmale  servant,^ 
had  found  his  wife  and  the  adulterer  to- 
gether in  bed.  This  last  fact  was  deposed 
to  by  the  servant;  but  as  she  was  the 
only  witness  called  to  prove  it,  and  as 
her  testimony  was  uncorroborated,  the 
learned  judge  did  not  feel  himself  at  lib- 
erty to  grant  the  promoter's  prayer.  This 
doctrine,  that  the  testimony  of  a  single 
witness,  though  omni  rxcejttione  major,  is 
insufficient  to   support  a  decree   in   the 


1  Evans  v.  Evans,  1  Roberts,  Ecc.  R. 
171.  The  passage  cited  from  Ayliffe, 
Par.  444,  is  as  follows  :  "  Full  proof  is 
made  by  two  or  three  witnesses  at  the 
least.  For  there  are  some  matters  which, 
according  to  the  Canon  law,  do  require 
five,  seven,  or  more  witnesses,  to  make 
full  proof."  The  same  learned  conimcn- 
tiitor,  a,  little  farther  on,  after  explaining 
that  "liquid  proof  is  that  which  appears  to 
the  judge  from  the  act  of  court,  since  that 
cannot  be  properly  said  to  be  manifest  or  tio- 
torioiis :"  ailds, — "  15y  the  Canon  law,  a  Jew 
is  not  admitted  to  give  evidence  against  a 
CiuMstian,  especiallg  ij  he  be  a  clerggman,  for 
by  that  law  the  jiroofs  against  a  clergyman 
ought  to  be  much  clearer  than  against  a  lag- 
man."  I'ar.  448.  Dr.  Ajiitie  does  not 
mention  what  matters  require  this  super- 
abundant proof,  but  we  have  already  said 


(vol.  1,  p.  380,  n.),  that  in  the  case  of  a 
cardinal  charged  with  incontinence,  the 
probatio,  in  order  to  be  plena,  must  be 
established  by  no  less  than  seven  rye-wit- 
nesses ;  so  improbable  does  it  api)ear  to 
the  Church  that  one  of  her  highest  digni- 
taries should  he  guilty  of  sucii  an  offence, 
and  so  anxious  is  she  to  avoid  all  possibil- 
ity of  judicial  scandal.  This  is  adopting 
with  a  vengeance  the  principles  of  David 
Hume  with  respect  to  miracles. 

-  Evans  v.  Evans,  1  Roberts,  Ecc.  R. 
165. 

^  The  fact  that  the  witness  was  a  wom- 
an, does  not  seem  to  have  formed  an 
element  in  the  judgment  of  the  court, 
though  Dr.  Aylitie  assures  his  readers, 
with  becoming  gravity,  that,  "by  the 
Canon  law,  more  credit  is  given  to  male 
than  to  female  witnesses."     P;ir.  545. 


296 


LAW   OF   EVIDENCE. 


[part  II. 


here  stated  by  tlic  learned  and  critical  author  may  he  liable  to 
possible  misconstruction.     The  point  embraced  in  the  proposition 


ecclesiastical  courts,  wlicn  such  testi- 
mony stands  unsuiiporteii  by  adminicular 
ciicimist;inces,  has  been  tie(iuently  pro- 
pounded by  Lord  Stowell,  both  in  suits 
lor  divorce,'  for  detiiination,'^  and  for 
brawiinji;''  and  before  the  new  AVill  Act 
was  passed,''  Sir  John  Nicholl  disreuarded 
similar  evidence,  us  not  amountiii<^'  to 
leji'al  proof  of  a  testamentary  act.*  In 
the  case  too,  of  JNlackenzie  v.  Veo,"  when 
a  codicil  was  propouniled,  purporting  to 
have  been  duly  executed,  and  was  de- 
posed to  by  one  attesting  witness  only, 
the  other  having  married  the  legatee.  Sir 
Herbert  Jenner  Fust  refused  to  grant  pro- 
hate,  though  he  admitted  the  witness  was 
unexceptionable,  on  the  ground  that  his 
testimony  was  not  confirmed  bj^  adminic- 
ular circumstances,  and  that  the  proba- 
bilities of  the  case  inclined  against  the 
tiictum  of  such  an  instrumentJ  In  an- 
other case,  however,  the  same  learned 
judge  admitted  a  paper  to  probate  on  the 
testimony  of  one  attesting  witness,  who 
had  been  examined  a  few  days  after  the 
death  of  the  testator,  though  the  other 
witness,  whose  deposition  had  not  been 
taken  till  two  years  and  a  half  afterwards, 
declared  that  the  will  was  not  signed  in 
liis  presence.  In  this  case  there  was  a 
formal  attestation  clause,  and  that  fact 
was  regarded  by  the  court  as  favoring  the 
supposition  of  a  due  execution.     Though 


the  cases  cited  above  certainly  establish 
beyond  disi)ute,  that,  by  the  CJanon  law, 
as  recognized  in  our  sjjiritual  courts,  one 
uncorroborated  witness  is  insullicient,  tiiey 
as  certainly  tlecide,  that,  in  ordinary  cases 
at  least,  two  or  more  witnesses  need  not 
depose  to  the  principal  fact ;  but  that  it 
will  suffice  if  one  be  called  to  swear  to 
such  fact,  and  the  other  or  others  speak 
merely  ,  to  conlirmatory  circumstances. 
Kay,  it  would  seem,  from  some  expres- 
sions used,  that,  as  in  cases  of  perjury, 
documentary  or  written  testimony,  or  the 
statements  or  conduct  of  the  party  li- 
belled, nuiy  supply  the  place  of  a  second 
witness.**  W,  hideed,  proceedings  be  in- 
stituted under  the  provisions  of  some 
statute,  which  expressly  enacts  that  the 
offence  shall  be  proved  by  two  lawful  wit- 
nesses, as,  for  instance,  the  Act  of  o  &  G 
Edw.  VI.  c.  4,  which  relates  to  brawling  in 
a  church  or  churchyard,  the  court  might 
feel  some  delicacy  about  presuming  that 
such  an  enactment  would  be  satisfied,  by 
calling  one  witness  to  the  fact,  and  one  to 
the  circumstances.^  It  seems  that  this 
rule  of  the  canonists  de]K'nds  less  on  the 
authority  of  the  civilians  than  on  the  Mo- 
saic code,  which  enacts,  that  one  witness 
shall  not  rise  up  against  a  man  for  any 
iniquity ;  but  at  the  mouth  of  two  or  three 
witnesses  shall  the  matter  be  established. ''' 
Indeed,  the  deci-etal  of  Pope  Gregory  the 


1  Donnellan  v.  Donnellan,  2  Ilagg. 
144.     (Suppl.) 

2  Crompton  v.  Butler,  1  Cons.  R.  460. 
<*  liutchins    V.   Deu/iloe,    1    Cons.   It. 

181,  182. 

•*  7  \V.  IV.  and  1  Vict.  c.  26,  wliich,  by 
§  34,  applies  to  wills  nuide  after  the  1st  of 
January,  1883. 

6  Theakston  v.  Marson,  4  Ilagg.  313, 
314. 

6  3  Curteis,  125. 

''  Gove  ".  (hiwen,  8  Curteis,  151. 

^  In  Kendrick  v.  Kendrick,  4  Ilagg. 
114,  the  testimony  of  a  single  witness  to 
adulter}'  being  corroborated  by  evidence 
of  the  misconduct  of  the  wife,  was  held  to 
be  sufficient.  Sir  .John  Nicholl  distinctly 
st;iting,  "  that  there  ni'cd  not  be  two  wit- 
ncs.-^es  ;  one  witness  and  circumstances  in 
corroboration  are  all  that  the  law  in  these 
cases  requires,"  pp.  136,  137,  and  Dr. 
Lushington  even  a(linitting,  that  "  he  was 
not  prepared  to  say  that  one  clear  and  un- 
impeached  witness  was  insufficient,"  p. 
130.     See  also  3  Burn.  ICccl.  L.  304. 


'  liutchins    V.    Deriziloe,   1    Cons.    R. 
182,  per  Lord  Stowell. 

w  Deut.  c.  19,  V.  15;  Dent.  c.  17,  v.  6  ; 
Numbers,  c.  35,  v.  30.  [The  rule  of  the 
Jewish  law,  above  cited,  is  exi)ressly  ap- 
plied to  crimes  only,  and  exten<ls  to  all 
persons,  lay  as  well  as  ecclesiastical.  If 
it  was  designed  to  have  any  force  beyond 
the  Jewish  theocracy  or  nation,  it  must, 
of  course,  be  the  paramount  law  of  the 
criminal  code  of  all  Christian  nations,  at 
this  day,  and  for  ever.  St.  Paul  makes 
merely  a  passing  allusion  to  it,  in  refer- 
ence to  the  third  time  of  his  coming  to 
the  Corinthians;  not  as  an  existing  rule 
of  their  law ;  and  much  less  with  any 
view  of  itnposing  on  them  the  numicii)al 
regulations  of  Moses.  The  Mosaic  law, 
exce])t  those  jiortions  which  are  purely 
moral  and  universal  in  their  nature,  such 
a«  the  ten  connnandments,  was  never  to 
be  enforced  on  any  converts  from  heathen- 
ism. See  Acts,  ch.  15;  Galatians,  cli.  2, 
V.  11-14.  Of  course,  it  is  not  binding  on 
us.     Our  Saviour,  in  l\Iatt.  ch.  18,  v.  16, 


CHAP.  XIV.] 


NUMBER   OF   WITNESSES. 


297 


is,  that  where  one  witness  only  testifies  to  the  existence  of  such 
usage,  and  others  deny  all  knowledge  of  its  existence  with  equal 
means  of  knowledge,  it  cannot  he  regarded  as  sufficiently  estab- 
lished. So  also  if  the  usage  be  improl)al)le  in  itself,  and  only  one 
witness  be  examined  in  its  snpport,  where  others  might  easily 
have  been  called,  it  will  not  be  cojisidered  as  well  established. 
But  there  is  nothing,  in  a  usage  of  trade,  or  a  general  cnstom, 
requiring  proof  from  more  than  one  witness,  unless  there  is 
some  ground  of  implying  doubt  of  the  accuracy  of  the  knowl- 
edge, or  of  the  disinterestedness  of  the  witness,  more  than  in  any 
other  case.  More  than  one  witness  will  naturally  be  called 
in  such  cases,  where  there  is  any  controversy  upon  the  point, 
and  where  others  are  accessible.  But  we  are  not  aware  of  any 
different  measure  of  proof  here  from  that  which  exists  in  all 
cases.] 

§  261.  There  are  also  certain  sales,  for  the  proof  of  which  the 
law  requires  a  deed,  or  other  written  document.     Thus,  by  the 


Nintli,  which  enforces  the  observance  of 
this  doctrine,!  expressly  cites  St.  Paul  as 
an  autliority,  where  he  teUs  the  Corinthi- 
ans that '  in  ore  diiorum  vel  trium  testiura 
Stat  oinne  verbuni.'  -  Now,  however  well 
suited  this  rule  niisht  have  been  to  the 
pecuUar  circumstances  of  the  Jewish  na- 
tion, who,  like  the  Hindus  of  old,  the 
modern  Greeks,  and  otiier  enslaved  and 
oppressed  people,  entertained  no  very  ex- 
alted notions  on  the  subject  of  truth ;  and 
who,  on  one  most  remarkable  occasion, 
gave  conclusive  proof  that  even  the  neces- 
sity^ of  calling  two  witnesses  was  no  vahd 
protection  against  the  crime  of  perjury  ;3 
—  it  may  well  be  doubted  whether,  in  the 
present  civilized  age,  such  a  doctrine,  in- 


stead of  a  protection,  has  not  become  an 
impediment  to  justice,  and  whether,  as 
such,  it  should  not  be  abrogated.  That 
this  was  the  opinion  of  the  common-law 
judges  in  far  earlier  times  than  the  pres- 
ent, is  apparent  from  several  old  deci- 
sions, which  restrict  the  rule  to  causes  of 
merely  si)iritual  conusance,  and  determine 
that  all  temporal  matters,  which  incident- 
ally arise  before  the  Ecclesiastical  courts, 
may,  and  indeed  must,  be  proved  there 
as  elsewhere,  by  such  evidence  as  the 
common  law  would  allow."'*  See  also 
Best's  Principles  of  Evidence,  §  390-3945 
Wills  on  Circumst.  Evid.  p.  23 ;  2  H.  Bl. 
101;  2  Inst.  608. 


17,  directs  that,  in  a  case  of  private  differ- 
ence between  Christian  brethren,  the  in- 
jured party  shall  go  to  the  offender,  taking 
with  him  "  one  or  two  more,"  who  are,  in 
the  first  instance,  to  act  as  arbitrators  and 
peacemakers  ;  not  as  witnesses  ;  for  they 
are' not  nccessaril,y  supposed  to  liave  any 
previous  knowledge  of  the  case.  After- 
wards these  may  be  called  as  witnesses 
before  the  Church,  to  testify  what  took 
place  on  that  occasion  ;  and  their  number 
■will  satisfy  any  rule,  even  of  the  Jewish 
Church,  respecting  the  number  of  wit- 
nesses. Eut  if  this  passage  is  to  be  taken 
as  an  indication  of  the  number  of  wit- 


nesses, or  quantity  of  oral  proof  to  be 
required,  it  cannot  be  extended  beyond 
the  case  for  which  it  is  prescribeil ;  name- 
ly, the  case  of  a  private  and  personal 
wrong,  prosecuted  before  the  Church,  in 
the  way  of  ecclesiastical  discipline,  and 
this  only  where  the  already  existing  rule 
requires  more  than  one  witness.     G.J 

1  Dec.  Greg.  lib.  2,  tit.  20,  c.  23. 

2  2  Cor.  c.  13,  v.  1. 

s  St.  iMattiiew,  c.  26,  v.  60,  61. 

*  Kichardson  v.  Disborow,  1  Vent.  291; 
Shotter  v.  Friend,  2  Salk.  517 ;  Breedon 
V.  (Jill,  Ld.  Bavm.  221.  See  further,  3 
Burn.  Eccl.  L.  304-308. 


298  LAW   OP   EVIDENCE.  [PART   II. 

Statutes  of  the  United  States,^  and  of  Great  Britain,^  the  grand 
i7/Z  (v/' &a?t' is  made_cssential  to  the  com)3letc_ti-ajiisfer_  of  any  ahip 
orjoesse] ;  thougliTas  between  the  parties  themselves,  a  title  may 
Tie  acquired  by  the  vendee  without  sucli  document.  Whether  this 
documentary  evidence  is  required  by  the  law  of  nations  or  not, 
is  not  perfectly  settled ;  but  the  weight  of  opinion  is  clearly  on 
the  side  of  its  necessity,  and  that  without  this,  and  tlie  other  usual 
documents,  no  national  character  is  attached  to  the  vessel.^ 

§  262.  Written  evidence  is  also  required  of  the  several  trans- 
actions mentioned  in  the  Statute  of  Frauds,  passed  in  the  reign 
of  Charles  11. ,  the  provisions  of  which  have  been  enacted,  gener- 
ally in  the  same  words,  in  nearly  all  of  the  United  States.*  The 
rules  of  e\ddence  contained  in  this  celebrated  statute  are  calculated 
for  the  exclusion  of  perjury,  by  requiring,  hi  the  cases  therein 
mentioned,  some  more  satisfactory  and  convincing  testimony  than 
mere  oral  evidence  affords.  The  statute  dispenses  with  no  proof 
of  consideration  which  was  previously  required,  and  gives  no 
efficacy  to  written  contracts  which  they  did  not  previously  possess.^ 
Its  policy  is  to  impose  such  requisites  upon  private  transfers  of 
property,  as,  without  being  hindcranccs  to  fair  transactions,  may 
be  either  totally  inconsistent  with  dishonest  projects,  or  tend  to 
multiply  the  chances  of  detection.^  The  object  of  the  present 
■work  will  not  admit  of  an  extended  consideration  of  the  provisions 
of  this  statute  ;  but  will  necessarily  restrict  us  to  a  brief  notice  of 
the  rules  of  evidence  which  it  has  introduced. 

1  United  States  Navigation  Act  of  1792,  sales   of  immovable    property   or    slaves 

ch.  45,  §  14;    Stat.  1793,  ch.  52;   [Stat,  shall  be  void.     4  Kent,  Comm.  450,  note 

1793,  ch.  1 ;  lb.  ch.  8,  vol.  1,  U.  S.  Stat-  (a),  (4th  edit.)     |For  the  general   provi- 

utes  at  Large   (Little  &  Brown's  edit.),  sions  of  the  existing  Englisli  statutes,  and 

page  294,  and  page  305] ;  Abbott  on  Ship-  of  the  statutes  of  all  the  United   States 

ping,   by   Story,  p.   45,  n.   (2) ;    o  Kent,  except  Louisiana,  and  excepting  Kansas 

Comm.  143,  149.     [See  also   Stat.  1850,  and  Minnesota,  admitted  into  the  Union 

ch.  27,  9  U.  S.  Statutes  at  Large  (L.  &  since  the  publication  of  his  volume,  see 

B  's  edit  )   440.1  Browne  on  Stat,  of  Frauds,  Appendix,  pp. 

'  2  Stat,  'o  (ico.  IV.  c.  109  ;  4  Geo.  IV,  501-532.] 
c.  48;  3  &  4  W.  IV.  c.  55,  §  31 ;  Abbott  &  2  Stark.  Evid.  341. 

on  Shijiping,  by  Slice,  pp.  47-52.  ''  Roberts  on  Frauds,  Tref.  xxii.     This 

a  Abbott  oil  Sliipping,  by  Story,  p.  1,  statute   iiitroiluccd  no  new  princinle  into, 

n.  (1,)  and  cases  there  cited;  Id.  p.  27,  n.  tlie'law  ;   it  was  lu-w  in  Fnghindoiilj^  in 

(1);  Id.  p.  45,  n.  (2);  Olil  v.  The  Eagle  the  niodc  of  proof  which  it  required.  Some 

Ins!   Co.  4  Mason,   172;   Jacobsen's   Sea  protective  regulations,  of  the  same  nature, 

Laws,  b.  1,  ch.  2,  p.  17 ;  [3  Kent,  Comm.  may  be  found  in  the  early  codes  of  most 

130.1  of  the  Northern  nations,  as  Avell  as  in  the 

*  29  Car.  2,  c.  3 ;  4  Kent,  Comm.  95,  laws  of  the  Anglo-Saxon  ])rinces;  the  pre- 

and  note  (b),  (4th  edit.)     The  Civil  Code  venlion    of   frauds    and   perjuries    being 

of  Louisiana,  art.  2115,  without  adopting  sought,   agreeably   to   the    simiilicity   of 

in  terms  the  provisions  of  the  Statute  of  those  unlettered  times,  by  reqiliring  a  cer- 

Frauds,  declares  generally  that  all  verbal  tain  number  of  witnesses  to  a  valid  sale, 


CHAP.  XIV.] 


STATUTE   OF   FRAUDS. 


299 


§  2G3.  By  this  statute,  the  necessity  of  some  writing  is  uni- 
versally required,  upon  all  conveyances  of  lands,  or  interest  in  lands, 
for  more  than  three  years ;  all  interests,  whether  of  freehold  or 
less  than  freehold,  certain  or  uncertain,  created  by  parol  without 
writing,  being  allowed  only  the  force  and  effect  of  estates  at  will ; 


anil  sometimes  by  restricting  such  sales 
to  particular  place,-;.  In  the  Anglo-Saxon 
laws,  such  regulations  were  quite  fa- 
miliar; and  the  Statute  of  Trauds  was 
merely  the  revival  of  obsolete  provisions, 
demanded  by  tlie  circumstances  of  the 
times,  and  adapted,  in  a  new  mode  of 
proof,  to  the  improved  condition  and  hab- 
its of  the  trading  community.  By  the 
laws  of  Lolharius  and  Edric,  kings  of 
Kent,  §  16,  if  a  Kentish  man  purchased 
any  thing  in  London,  it  must  be  done  in 
the  presence  of  two  or  three  goo<l  citizens, 
or  of  the  mayor  of  the  city.  (Canciani, 
Leges  Barbarornm  Antiquie,  vol.  4,  p. 
281.)  The  laws  of  King  Edward  the 
Ehler  (De  jure  et  hte,  §  1)  required  the 
testimony  of  the  mayor,  or  some  other 
credible  person  to  every  sale,  and  i)rohib- 
ited  ail  sales  out  of  ihe  city.  (Cancian. 
tib.  sup.  p.  25(j.)  King  Athelstan  prohib- 
ited sales  in  the  country,  above  the  value 
of  twenty  pence  ;  and,  for  those  in  the 
city,  he  required  the  same  tbrmaUties 
as  in  the  laws  of  Edward.  (Id.  pp.  "261, 
262,  LL.  Athelstani,  §  12.)  By  the  laws 
of  King  Ethelred,  every  freeman  was  re- 
quired to  have  his  surety  (tidejus.sor), 
without  whom,  as  well  as  other  evidence, 
there  could  be  no  valid  sale  or  barter. 
"  Nullus  homo  facial  alterutrum,  nee 
emat,  nee  permutet,  nisi  lidejussorem 
habeat,  et  testimonium."  (Id.  p.  287,  LL. 
Etheh-edi,  §§  1,  4.)  In  the  Concilium 
Seeulare  of  Canute,  §  22,  it  was  provided, 
that  there  should  be  no  sale,  above  the 
value  of  four  pence,  whether  in  the  city  or 
country,  without  the  presence  of  four  wit- 
nesses. (Id.  p.  305.)  The  same  rule,  in 
nearly  the  same  words,  was  enacted  by 
William  the  Conqueror.  (Id.  p.  357,  LL. 
Guil.  Conq.  §  43.)  Afterwards,  in  the 
Charter  of  the  Conqueror  (§  60),  no  cat- 
tle ("  nuha  viva  pecunia,"  soil,  animalia) 
could  be  legally  sold,  unless  in  the  cities, 
and  in  the  presence  of  three  witnesses. 
(Cancian.  ub.  sup.  p.  360,  Leges  Anglo- 
Sa.xonicffi,  p.  1U8  (o).  Among  tlie  an- 
cient Sueones  and  Goths,  no  sale  was 
originally  permitted  but  in  the  presence 
of  witnesses,  and  (per  mediatores)  through 
the  medium  of  brokers.  '  The  witnesses 
were  required  in  order  to  preserve  the 
evidence  of  the  sale ;  and  the  brokers,  or 
mediators  (ut  pretium  nu)derarentur),  to 
pi'event  extortion,  and  to  see  to  the  title. 


But  these  formalities  were  afterwards  dis- 
peu.setl  with,  except  in  the  sale  of  articles 
of  value  (res  pretiosae),  or  of  great  amount. 
(Cancian.  ub.  sup.  p.  231,  n.  4.)  Aliena- 
tions of  lands  were  made  only  (i)ublicis 
literis)  by  documents  legally  authenti- 
cated. By  the  Danish  law,  lands  in  the 
city  or  country  might  be  exchanged  with- 
out judicial  appraisement  (])er  tabulas 
manu  signoque  permutantis  affixas),  by 
deed,  under  the  hand  and  seal  of  the 
party.  (Id.  p.  261,  n.  4.)  The  Roman 
law  required  written  evidence  in  a  great 
variety  of  cases,  embracing,  among  many 
others,  all  those  mentioned  in  the  Statute 
of  Frauds ;  which  are  enumerated  by  N. 
Ue  Leseut,  De  Exam.  Testium,  Cap.  26. 
(Farinac.  Oper.  Tom.  2,  App.  243.)  See 
also  Brederodii  Repertorium  Juris,  col. 
984,  verb.  Scriptura.  Similar  provisions, 
extending  in  some  cases  even  to  the  proof 
of  payment  of  debts,  were  enacted  in  the 
statutes  of  Bologna  (A.  D.  1454),  Milan 
(1498),  and  Naples,  which  are  prefixed  to 
Danty's  Traite'  de  la  Preuve,  par  Temoins. 
By  a  Perpetual  P.dict  in  the  Archduchy 
of  Flanders  (A.  D.  1611),  all  sales,  testa- 
ments, and  contracts  whatever,  above  the 
value  of  three  hundred  livres  Artois,  were 
required  to  be  in  writing.  And  in  France, 
by  the  Ordonnance  de  Moulins  (A.  D'. 
1566),  confirmed  by  that  of  1667,  parol  or 
verbal  evidence  was  excluded  in  all  cases, 
where  the  subject-matter  exceeded  the 
value  of  one  hundred  livres.  See  Danty, 
de  la  Preuve,  &c.,  passim;  7  Poth.  CEu- 
vres,  &c.,  4to,  p.  56 ;  Traite'  de  la  Proced. 
Civ.  ch.  3,  art.  4,  Regie  3me. ;  1  Poth.  on 
Obi.  part  4,  ch.  2,  arts.  1,  2,  3,  5;  Com- 
mercial Code  of  France,  art.  109.  The 
dates  of  these  regulations,  iind  of  the  Stat- 
ute of  Frauds,  and  the  countries  in  which 
they  were  a(lo])ted,  are  strikingly  indic- 
ative of  the  revival  and  jirogress  of  com- 
merce. Among  the  Jews,  kinds  were 
conveyed  by  deed  only,  from  a  very  early 
period,  as  is  evident  from  the  transaction 
mentioned  in  Jer.  xx.xii.  10,  11,  12;  where 
the  principal  document  was  "  sealed  ac- 
cording to  the  law  and  custom,"  in  the 
presence  of  witnesses ;  and  another  writ- 
ing, or  "  open  evidence,"  was  also  taken, 
probably,  as  Sir  John  Chardin  thought, 
for  common  use,  as  is  the  manner  iu  the 
East  at  this  day. 


300  LAW   OF   EVIDENCE.  [PART   II. 

except  leases,  not  exceeding  the  term  of  three  years  from  the 
making  there(jf,  whereon  the  rent  reserved  shall  amonnt  to  two- 
thirds  of  th(;  iinprovcd  value.     The  term  of  three  years,  for  wliich 
a  parol  lease  may  be  good,  must  be  only  three  years  from  the 
making  of  it ;  but  if  it  is  to  connnence  in  futuro,  yet  if  the  term 
is  not  for  more  than  three  years  it  will  be  good.     And  if  a  parol 
lease  is  made  to  hold  from  year  to  year,  during  the  pleasure  of 
the  parties,  this  is  adjudged  to  be  a  lease  only  for  one  year  certain, 
and  that  every  year  after  it  is  a  new  springing  interest,  arising 
upon  the  first  contract,  and  parcel  of  it ;    so  that  if  the  tenant 
should  occupy  ten  years,  still  it  is  prospectively  but  a  lease  for>^ 
a  year  certain,  and  therefore  good,  within  the  exception  of  the  ^ 
statute ;  though  as  to  the  time  past  it  is  considered  as  one  entire 
and  valid  lease  for  so  many  years  as  the  tenant  has  enjoyed  it.^     . 
But  though  a  parol  lease  for  a  longer  period  than  the  statute     ^ 
permits  is  void  for  the  excess,  and  may  have  only  the  effect  of     J 
a  lease  for  a  year,  yet  it  may  still  have  an  operation,  so  far  as  its 
terms  apply  to  a  tenancy  for  a  year.      If,   therefore,  there   be     J 
a  parol  lease  for  seven  years  for  a  specified  rent,  and  to  commence 
and  end  on  certain  days  exjjressly  named  ;  though  this  is  void  as 
to  duration  of  the  lease,  yet  it  must  regulate  all  the  other  ternfs 
of  the  tenancy  .2 

§  264.  By  the  same  statute,  no  leases,  estates,  or  interests,  C 
either  of  freehold  or  terms  of' years,  or  an  uncertain  interesty.  T 
other  than  copyhold  or  customary  interests  in  lands,  tenements,  ^ 
or  hereditaments,  can  be  assigned,  granted,  or  surrendered,  unless  ^ 
by  deed  or  writing,  signed  by  the  party,  or  his  agent  authorized  by 
writing,^  or  by  operation  of  law.  At  common  law,  surrenders  of 
estates  for  life  or  years  in  things  corporeal  were  good,  if  made  by 
parol ;  but  things  incorporeal,  lying  in  grant,  could  jieither  be 
created  nor  surrendered  but  by  deed.*  The  eifect  of  this  statute 
is  not  to  dispense  with  any  evidence  required  by  the  conmion  law, 
but  to  add  to  its  provisions  somewhat  of  security,  by  requiring 
a  new  and   more   permanent   species  of  testimony.      Wherever, 

1  Roberts    on    Frauds,    pp.    241-244  ;  parol,  in  order  to  make  a  binding  contract 

[Browne  on  Stat,  of  Frauds,  §  1-40. |  of  sale,   provided    tlie    eontraet   itself  be 

'■^  Doe  V.  Hell,  5  T.  R.  471;  [Browne  made  in  writing;  but  bis  authority  to  cori- 

on  Stat,  of  Fravuis,  §  3'J.]  vc>/  must  be  by  deed.     Story  on  Agency, 

8  In  tbe  statutes  of  some  of  tbe  United  §  50;  Alna  v.  Plummer,  4  Greenl.  258. 
States,  tbe   words  "  autborized   by  writ-  ^  Co.    Lit.    337   /;,    338  a ;    2    Shep. 

ing  "  are  omitted;  in  wbich  case  it  is  suf-  Touchst.  (by  Preston),  p.  300. 
ficient  tbat   the  agent  be  authorized  by 


/ 


CHAP.  XIV,]  STATUTE   OF   FRAUDS.'  301 

therefore,  at  common  law  a  deed  was  necessary,  the  same  solem- 
nity is  still  requisite  ;  but  with  respect  to  lands  and  tenements  in 
possession,  which  before  the  statute  might  have  been  surrendered 
by  parol,  that  is,  by  words  only,  some  note  in  writing  is  now  made 
essential  to  a  valid  surrender.^ 

§  2G5.  As  to  the  effect  of  the  cancellation  of  a  deed  to  devest  the 
estate,  operating  in  the  nature  of  a  surrender,  a  distinction  is 
taken  between  things  lying  in  livery,  and  those  which  lie  only  in 
grant.  In  the  latter  case,  the  subject  being  incori)oreal.^  and 
owing  its  very  existence  to  the  deed,  it  appears  that  at  common 
law  the  destruction  of  the  deed  by  the  party,  with  intent  to  defeat 
the  interest  taken  under  it,  will  have  that  effect.  Without 
such  intent,  it  will  be  merely  a  case  of  casual  spoliation.  ButI 
where  the  thing  lies  in  livery  and  manual  occupation,  the  deed! 
being  at  common  law,  only  the  authentication  of  the  transfer,  and 
not  the  o})erative  act  of  conveying  the  property,  the  cancellation 
of  the  instrument  will  not  involve  the  destruction  of  the  interest 
conveyed.2  It  has  been  thought,  that  since  writing  is  now  by  the 
statute  made  essential  to  certain  leases  of  hereditaments  lying  in 
livery,  the*  destruction  of  the  lease  would  necessarily  draw  after 
it  the  loss  of  the  interest  itself.^  But  the  better  opinion  seems  to 
be,  that  it  will  not ;  because  the  intent  of  the  statute  is  to  take 
away  the  mode  of  transferring  interests  in  lands  by  symbols  and 
words  alone,  as  formerly  used,  and  therefore  a  surrender  by  can- 
cellation, which  is  but  a  sign,  is  also  taken  away  at  law ;  though 
a  symbolical  surrender  may  still  be  recognized  in  chancery  as  the 
basis  of  relief.*  The  surrender  "in  law,  mentioned  in  the  statute, 
is  where  a  tenant  accepts  from  his  lessor  a  new  interest,  incon- 

1  Iloberts  on  Frauds,  p.  248 ;  [Browne  of  the  Unitefl  States,  where  the  owner  of 

on  Statute  of  Frauds,  §  41-57.]  lands  wliich  lie  holds  by  an  unregisteredj 

-Roberts    on   Frauds,   pp.    248,   249;  deed,  is  about  to  sell  4iis  estate  to  a  stran- 

Bolton  V.  Bp.  of  Carlisle,  2  H.  Bl.  2Go,  ger,  it  is  not  unusual  for  him  to  surrender 

264;    YioQ  v.  Bingham,  4  B.  &  A.  672;  his  deed  to  his  grantor,  to  be  eancelled, 

Holbrook  v.  Tirrcll,  9  Pick.  105;   Bots-  the  original  grantor  thereupon  making  a 

ford  V.  Moreliouse,  4  Conn.  550;  Gilbert  new   deed   to   the    new   pureliaser.     This 

V.  Bulkley,  5  Conn.  202 ;  Jackson  v.  Chase,  redelivery  is  allowed  to  have  the  practical 

2  Johns.  86.     See  wfra,  §  568.  effect  of  a  surrender,  or  reconveyance  of 

8  4   Bac.   Abr.   218,    tit.   Leases    and  the   estate,   the  first   grantee   and   those 

Terms  from  Years,  T.  claiming  under  him  not  being  permitted 

*  ]\oberts    on   Frauds,   pp.    251,   252;  to  give  parol  evidence  of  the  contents  of 

Magcnnis    r.    McCullogh,    Gilb.    Eq.    R.  the  deed,  thus  surrendered  and  destroyed 

235;  Natcld)olt  v.  Porter,  2  Vern.  112;  4  with  his  consent,  witli  a  view  of  passing  a 

Kent,  Connn.  104;  4  Cruise's  Dig.  p.  85  legal  title  to  his  own  alienee.     Farrar  ?;. 

(Grecnleaf 's  edit.),  tit.  32,  ch.  7,  §§  5,  6,  7  ;  Farrar,  4  N.  Ilamp.  l9l  ;  Commonwealth 

i2d  edit.  (1856)  vol.  2,  p.  413  et  seq. ;]  Roe  v.  Dudley,  10  Mass.  403  ;  Holbrook  r.  Tir- 

V.  Archb.  of  York,  6  East,  86.  In  several  rell,  9  Pick.  105  ;  Barrett  v.  Thorndike, 
VOL.  I.                                               26 


302  LAW   OF    EVIDENCE.  [PART   II. 

sistent  with  that  which  he  previously  had  ;  in  which  case  a  sur- 
render of  his  former  interest  is  presumed.^ 

§  266.  This  statute  further  requires  that  the  declaration  or 
creation  of  trusts  of  lands  shall  be  manifested  and  proved  only  hy 
some  writing,  signed  by  the  party  creating  the  trust;  and  all 
grants  and  assignments  of  any  such  trust  or  confidence,  are  also 
to  be  in  writing,  and  signed  in  the  same  manner.  It  is  to  be 
observed,  that  the  same  statute  does  not  require  that  the  trust 
itself  1)0  created  by  writing ;  but  only  that  it  be  manifested  and 
proved  by  writing  ;  plainly  meaning  that  there  should  be  evidence 
in  writing,  proving  that  there  was  a  trust,  and  what  the  trust  was. 
A  letter  acknowledging  the  trust,  and,  «  fortiori,  an  admission, 
in  an  answer  in  chancery,  has  therefore  been  deemed  sufficient 
to  satisfy  the  statute.^  liesulting  trusts,  or  those  which  arise  by 
implication  of  law,  are  specially  excepted  from  the  operation  of 
the  statute.  Trusts  of  this  sort  are  said  by  Lord  Hardwicke  to 
arise  in  three  cases :  first,  where  the  estate  is  purchased  in  the 
name  of  one  person,  but  the  money  paid  for  it  is  the  property  of 
another ;  secondly,  where  a  conveyance  is  made  in  trust,  declared 
only  as  to  part,  and  the  residue  remains  undisposed  of,  nothing 
being  declared  respecting  it;  and,  thirdly,  in  certain  cases  of 
fraud.3  Other  divisions  have  been  suggested  ;*  but  they  all  seem 
to  be  reducible  to  these  three  heads.  In  all  these  cases,  it  seems 
now  to  be  generally  conceded  that  parol  evidence,  though  received 
with  great  caution,  is  admissible  to  establish  the  collateral  facts, 
(not  contradictory  to  the  deed,  unless  in  the  case  of  fraud,)  from 
which  a  trust  may  legally  result ;  and  that  it  makes  no  difference 

1  Greenl.  78.     See  4  Cruise's  Dig.  tit.  32,  tion,  but  for  the  undertaking  of  tlie  per- 

c.  1,  §  15,   note   (Greenleat's   edit.),  [2d  son  whom  he  trusted,  or  else  it  must  be 

edit.  (1^56)  vol.  2,  p.  800.]  shown  to  be  an  aUenipt  to  create  an  ille- 

1  Koberts    on   Frauds,   pp.    259,   260;  gal  trust,     (iresley  on  Kvid.  in  Equity, 

[Browne  on  Stat,  of  Frauds,  §§  44,  59,  p.    108    [21)2]  ;    Strode   v.   Winchester,   1 

(jO.l  Dick.  897.     Sec  White  &  Tudor's  Lead- 

^  Forster  v.  Ilalc,  3  Yes.  696,  707,  per  ing  Cases  in  Equity,  vol.  2,  part  1,  p.  591 ; 

Ld.  Alvanley;  4  Kent,  Comm.  805;  Kob-  [Browne  on  Slat,  of  Frauds,  §  97  et  seq.; 

erts  on  Frauds,  p.  95;    1   Cruise's  Dig.  Dean  v.  Dean,  1  Stockton,  44.     In  Con- 

(by  Greenleaf)  tit.  12,  ch.  1,  §§  3(j,  37,  p.  necticut,  it  has  been  held  that  where  a 

390;  [2d  edit.  (1S5IJ)  vol.  l,p.'8t)9;]  Lcwin  lnisl)and    conveyed    land    to    his    fatiier, 

on  Trusts,  p.  80.     Courts  of  c(iuity  will  without  consideration,  but  under  a  parol 

receive  parol  evidence,  not  only  to   ex-  agreement  that  the  father  should  convey 

plain  an   iuijierfect  declaration  of  a  tes-  it  to  the  wife  of  the  s(m,  parol  evidence 

tjitor's  intentions  of  trust,  but  even  to  add  was  admissible  to  establish  the  trust  in 

conditions  of  trust  to  what  appears  a  sim-  favor  of  the  wife.     Hayden  v.  Denslow, 

pie  devise  or  be<|  nest.     Hut  it  must  either  27  C(mn.  835.1 

be   fairly   presuniable,   that   the    testator  »  Lloyd  r.  Spillet,  2  Atk.  148,  150. 

would  have  made  the  requisite  declara-  *  1  Lomax's  Digest,  p.  200. 


CHAP.  XIV.] 


STATUTE   OF   FRAUDS. 


303 


as  to  its  admissibility  whether  tl^e  supposed  purchaser  be  living 
or  dead.^ 

§  267.  Written  evidence,  signed  by  the  party  to  be  charged 
therewith,  or  by  his  agent,  is  by  the  same  statute  required  in 
every  case  of  contract  by  an  excciitor  or  administrator,  to  answer 
damages  out  of  his  own  estate ;  every  promise  of  one  person  to 
answer  for  the  debt,  default,  or  miscarriage  of  another ;  every 
agreement  made  in  consideration  of  marriage ;  or  which  is  not  to 
be  performed  within  a  year  from  the  time  of  making  it ;  and  every 
contract  for  the  sale  of  lands,  tenements,  or  hereditaments,  or  any 
interest  in  or  concerning  them.  The  like  evidence  is  also  required 
in  every  case  of  contract  for  the  sale  of  goods,  for  the  price  of  £10 
sterling  or  upwards,^  unless  the  buyer  shall  receive  part  of  the 
goods  at  time  of  sale,  or  give  something  in  earnest,  to  bind  the 
bargain,  or  in  part  payment.^ 

§  268.  It  is  not  necessary  that  the  written  evidence  required 
by  the  Statute  of  Frauds  should  be  comprised  in  a  single  docu- 
ment, nor  that  it  should  be  drawn  up  in  any  particular  form.  It 
is  sufficient,  if  the  contract  can  be  plainly  made  out,  in  all  its 
terms,  from  any  ivritings  of  the  party,  or  even  from  his  correspond- 
ence. But  it  must  all  be  collected  from  the  ivritings  ;  verbal  testi- 
mony not  being  admissible  to  supply  any  defects  or  omissions  in 
the  written  evidence.^     For  the  policy  of  the  law  is  to  prevent 


1  3  Sugflen  on  Vendors,  256-260  (lOth 
edit.) ;  2  Story,  Eq.  Jurisp.  §  1201,  note; 
Lench  v.  Lench,  10  Ves.  517;  Boyd  r. 
JNIcLean,  1  Johns.  Cli.  11.  682;  4  Kent, 
Comni.  305;  Pritchard  v.  Brown,  4  N. 
Hamp.  397.  See  also  an  article  in  3  Law 
Mag.  p.  131,  where  the  Enjjlish  cases  on 
this  subject  are  reviewed.  Tlie  American 
decisions  are  collected  in  Mr.  Kand's  note 
to  the  case  of  Goodwin  v.  Hubbard,  15 
Mass.  218.  In  Mdssachufdts,  there  are 
dicta  apparently  to  the  effect,  that  parol 
evidence  is  not  admissible  in  these  cases  ; 
l)ut  the  point  does  iu)t  seem  to  liave  been 
directly  in  judgment,  imlcss  it  is  involved 
in  the  decision  in  Bullard  v.  Briggs,  7 
I'ick.  533,  where  parol  evidence  was  ad- 
mitted. See  Storer  v.  Batson,  8  Mass. 
431,  442 ;  }sorthamptnn  Bank  v.  Whiting, 
12  Mass.  104,  lO'.t ;  (ioodwin  r.  Hubbard, 
15  Mass.  210,  217.  [In  New  Hampshire, 
parol  evidence  is  admissible  to  establish 
a  fact  from  which  the  law  will  raise 
or  imply  a  trust,  but  not  to  prove  any 
declaration  of  trust  or  agreement  of  the 


parties  for  a  trust.  Moore  v.  Moore,  38 
N.  Hamp.  382.] 

-  The  sum  here  required  is  different 
in  the  several  states  of  the  Union,  vary- 
ing from  thirty  to  fifty  dollars.  [See 
Browne  on  Stat,  of  Frauds,  Appendix,  pp. 
503-532.]  But  the  rule  is  everywhere  the 
same.  By  the  statute  of  9  Geo.  IV.  c. 
14,  this  provision  of  the  Statute  of  Frauds 
is  extended  to  contracts  executory,  for 
goods  to  be  manufactured  at  a  futiu-e  day, 
or  otherwise  not  in  a  state  fit  for  deliv- 
ery- at  the  time  of  making  the  contract. 
Shares  in  a  joint-stock  company,  or  a  pro- 
jected railway,  are  held  not  to  be  goods 
or  chattels,  within  the  meaning  of  the 
statute.  Humble  v.  Mitchell,  11  Ad.  & 
El.  205 ;  Tempest  v.  Kilner,  3  M.  G.  &  S. 
251 ;  Bowlby  v.  Bell,  Id.  284. 

8  2  Kent,  Comm.  403,  404,  405. 

*  Boydell  r.  Drunnnond,  1 1  East,  142 ; 
Chitty  on  Contracts,  pp.  314-316  (4th  Am. 
edit.);  2  Kent,  Connn.  511;  Roberts  on 
Frauds,  p.  121 ;  Tawney  v.  Crowther,  3 
Bro.  Ch.  Rep.  161,  318 ;  4  Cruise's  Dig. 


304 


LAW   OF   EVIDENCE. 


[part  II. 


fraud  and  perjury,  by  taking  all  the  enumerated  transactions 
entirely  out  of  the  reach  of  any  verbal  testimony  whatever.  Nor 
is  the  place  of  signature  material.  It  is  sufficient  if  the  vendor's 
name  be  printed,  in  a  bill  of  parcels,  provided  the  vendee's  name 
and  the  rest  of  the  bill  are  written  by  the  vendor.^  Even  his 
signature,  as  a  witness  to  a  deed,  which  contained  a  recital  of  the 
agreement,  has  ))cen  held  sufficient,  if  it  appears  tliat  in  fact  he 
knew  of  tlie  recital.^  Neither  is  it  necessary  that  the  agreement 
or  memorandum  be  signed  by  both  parties,  or  that  both  be  legally 
lj(nuid  to  the  performance ;  for  the  statute  only  re(piires  that  it  be 
signed  "  by  the  party  to  be  charged  therewith,"  that  is,  by  the 
defendant  against  whom  the  performance  or  damages  are  de- 
manded.*^ 

§  209.  Where  the  act  is  done  by  procuration,  it  is  not  necessary 
tliat  the  agent's  authority  should  be  in  writing ;  e5;cept  in  those 
cases  where,  as  in  the  first  section  of  the  statute  of  29  Car.  II,  c. 
3,  it  is  so  expressly  required.     These  excepted  cases  are  luider- 


(by  Greenleaf),  pp.  33,  35,  30,  37,  tit.  82, 
c.  3,  §§  3,  ltj-2tj  [Greenleaf's  2d  edit. 
(1856)  vol.  2,  pp.  344-351  and  notes]; 
Cooper  V.  Smith,  15  East,  103  ;  I'arkhurst 
V.  Van  Cortlandt,  1  Jolins.  Cli.  K.  280, 
281,  282;  Aheel  v.  liadclifi;  13  Jolins.  2y7; 
Smith  V.  Arnold,  5  .Mason,  414;  Ide  v. 
Stanton,  15  Verm.  G85 ;  Sherburne  v. 
Shaw,  1  N.  Ilamp.  157 ;  Adams  v.  Mc- 
Millan, 7  I'ort.  73;  Gale  r.  Ni.xon,  0  Cow- 
en,  445  ;  Meadows  ;;.  Meadows,  3  McCord, 
458;  Nichols  v.  Johnson,  10  Conn.  192. 
Wliether  the  Statute  of  Frauds,  in  requir- 
ing that,  in  certain  cases,  the  "  agree- 
ment "  be  ]iroved  by  writing,  requires 
that  the  "  consideration  "  should  be  ex- 
pressed in  the  writing,  as  part  of  the 
agreement,  is  a  jxjint  wlii(!li  has  been 
much  discussed,  and  ui)onwiiich  the  Kng- 
lish  and  some  American  cases  are  in  di- 
rect opposition..  The  English  courts  hold 
the  allirmative.  See  Wain  v.  Warlters, 
5  East,  10 ;  reviewed  and  confirmed  in 
Saunders  v.  Wakefield,  4  B.  &  Aid.  5'J5 ; 
and  their  construction  has  been  followed 
in  Nc-io  York,  Sears  v.  J}rink,  3  Johns. 
210;  Leonard  v.  Vredenburg,  8  Johns.  29. 
In  Ntw  Ildiiipsliire,  in  Neelson  ;;.  San- 
borne,  2  N.  llamp.  413,  the  same  con- 
struction seems  to  be  recognized  and  ap- 
proved. Hut  in  Massdchtisdts,  it  was 
rejected  by  the  whole  court,  upon  great 
consideration,  in  Packard  v.  Richardson, 
17  Mass.  122.  So  in  Maine,  Levy  v.  Mer- 
rill, 4  Greenl.  180;  in  Connecticut,  Sage  v. 
Wilcox,  G  Conn.  81;  in  New  Jersey,  Buck- 


ley V.  Beardsley,  2  South.  570 ;  and  in 
North  Carolina,  Miller  v.  Irvine,  1  Dev. 
&  Batt.  103 ;  and  nou^  in  South  Carolina, 
Fyler  v.  (iivens,  liiley's  Law  Cas.  j»p.  5(J, 
G2,  overruling  Stephens  v.  Winn,  2  N.  & 
]McC.  372,  n. ;  Woodward  v.  Pickett,  Dud- 
ley's So.  Car.  Rep.  p.  30.  See  also  Vio- 
let V.  I'atton,  5  Cranch,  142;  Taylor  v. 
l\oss,  3  Ycrg.  330;  3  Kent,  Comm.  122; 
2  Stark.  Evid.  350  (Gtli  Am.  edit.). 

1  Saunderson  v.  Jackson,  2  B.  &  V. 
238,  as  explained  in  Ciiampion  i'.  riuni- 
mer,  1  New  Rep.  254  ;  Roberts  on  Frauds, 
pp.  124,  125;  Fenuinian  v.  Hartshorn,  13 
Mass.  87. 

-  Welford  v.  Beezely,  1  Ves.  6  ;  1  Wils. 
118,  s.  c.  The  same  rule,  with  its  (piali- 
fication,  is  recognized  in  the  Roman  law, 
as  applicable  to  all  subscribing  witnesses, 
except  those  whose  official  dutj^  obliges 
them  to  subscribe,  .such  as  notaries,  &c. 
IMenochius,  De  Prtesump.  lib.  3;  Pra;- 
sump.  (ll).  per  tot. 

■^  Allen  V.  Bennett,  3  Taunt.  169;  3 
Kent,  Comm.  510,  and  cases  there  cited; 
Shirley  v.  Shirley,  7  Blackf.  452 ;  Davisi 
V.  Shields,  2G  Wend.  341 ;  Douglass  v. 
Spears,  2  N.  &  McC.  207.  [*  The  New- 
York  statute  seems  to  require  a  contract 
for  the  sale  of  goods  above  tiie  value  of 
fifty  dollars  to  be  signed  by  both  jjarties. 
Dykers  v.  Townsend,  24  N.  Y.  Ct.  App. 
67.  But  the  verbal  directions  of  the  party, 
sent  by  telegraph,  accejiting  a  proposition, 
will  amount  to  signing  within  tlie  statute. 
Dunning  v.  Roberts,  35  Barb.  403.] 


CHAP.  XIV.]  STATUTE   OF   FRAUDS.  305 

stood  to  be  those  of  an  actual  conveyance,  not  of  a  contract  to 
convey;  and  it  is  accordingly  held,  that  though  the  agent  to  make 
a  deed  must  be  authorized  by  deed,  yet  tlie  agent  to  enter  into  an 
agreement  to  convey  is  sufficiently  authorized  ])y  parol  unly.^  An 
auctioneer  is  regarded  as  the  agent  of  both  parties,  whether  the 
subject  of  the  sale  be  lands  or  goods ;  and  if  the  whole  contract 
can  be  made  out  from  the  memorandum  and  entries  signed  by 
him,  it  is  sufficient  to  bind  them  both.^ 

§  270.  The  word  lands,  in  this  statute,  has  been  expounded  to 
include  every  claim  of  a  permanent  right  to  hold  the  lands  of 
another,  for  a  particular  purpose,  and  to  enter  upon  them  at  all 
times,  without  his  consent.  It  has  accordingly  been  held,  that 
a  right  to  enter  upon  the  lands  of  another,  for  the  purpose  of 
erecting  and  keeping  in  repair  a  mill-dam  embankment,  and  canal, 
to  raise  water  for  working  a  mill,  is  an  interest  in  land,  and 
cannot  pass  but  by  deed  or  writing.^  But  where  the  interest  is 
vested  in  a  corporation,  and  not  in  the  individual  corporators,  the 
shares  of  the  latter  in  the  stock  of  the  corporation  are  deemed 
personal  estate.'* 

§  271.  The  main  difficulties  under  this  head  have  arisen  in  the 
application  of  the  principle  to  cases,  where  the  subject  of  the  con- 
tract is  trees,  growing  crops,  or  other  things  annexed  to  the  freehold. 
It  is  well  settled  that  a  contract  for  the  sale  of  fruits  of  the  earthy 
ripe,  but  not  yet  gathered,  is  not  a  contract  for  any  interest  in 
lands,  and  so  not  within  the  Statute  of  Frauds,  though  the  vendee 
is  to  enter  and  gathcp  them.^  And  subsequently  it  has  been  held, 
that  a  contract  for  the  sale  of  a  crop  of  potatoes  was  essentially  the 
same,  whether  they  were  covered  with  earth  in  a  field,  or  were 
stored  in  a  box ;   in  either  case,  the  subject-matter  of  the  sale, 

1  Story  on  Agency,  §  50;  Coles  ?\  Tre-  Agency,   §   27,   and   cases    there    cited; 

cothick,  y  Ves.  250 ;   Clinan  v.  Cooke,  1  Cieaves  v.  Foss,  4  Greenl.  1 ;  Roberts  on 

Sch.  &  Lef.  22;    Koberts  on  Frauds,  p.  Frauds,  pp.  113,  114,  note  (5G);  2  Stark. 

113,  n.  (54) ;  [Browne  on  Stat,  of  Frauds,  Evid.  352  (Gtli  Am.  edit.) ;  Davis  r.  Kob- 

§  o55-3lJ6.]     If  an  agent,  liaving  only  a  crtson,   1    Kep.   Const.  C.  71;   Adams  v. 

verbal  authority,  should  o.xccute  a  Ixind  McMillan,  7  I'ort.  73;  4  Cruise's  Dig.  lit. 

in  the  name  of  his  principal,  and  after-  32,  ch.  3,  §  7,  note  (Greenlcaf's  edit.), 

wards  he  be  regularly  constituted  by  letter  [2(1  cilit.  (185IJ)  vol.  2,  p.  34G ;  Browne  on 

of  attorney,  bearing  date  prior  to  that  of  Stat,  of  Frauds,  5i§  347,  3(5'.l.] 
the  deed  ;  tills  is  a  subsequent  ratification,  ^  Cook     v.    Stearns,     11    Mass.    538; 

oi)erating  by  estoppel  against  the  princi-  [Browne  on  Stat,  of  Frauds,  §  227-2(i2.] 
pal,  and  renderin'4  the  bond  valid  in  law.  *  Bligh  v.  Brent,  2  Y.  &  Col.  2(J8,  295, 

IMilliken  c.  Coombs,  1  Greenl.  343.     And  200;  Bradley  v.  lloldsworth,  3  M.  &  W. 

see  Ulen  v.  Kittredgc,  7  Mass.  233.  422. 

-  Emmers(m   v.  Ileelis,  2  Taunt.   38;  ^  Parker  v.   Staniiand,   11  East,  362; 

White  V.  Procter,  4  Taunt.  209;  Long  on  Cutler  v.  Pope,  1  Sliepl.  337. 
Sales,   p.    38    (Rand's    edit.)  ;    Story    on 

26* 


k 


ll 


306  LAW   OF   EVIDENCE.  [PART  II. 

namely,  potatoes,  being  but  a  personal  chattel,  and  so  not  within 
the  Statute  of  Frauds.^  Tlie  latter  cases  confirm  the  doctrine 
involved  in  this  decision,  namely,  that  the  transaction  takes  its 
character  of  realty  or  personalty  from  the  jirincipal  sul)ject>-matter 
of  the  contract,  and  the  intent  of  the  j)arties ;  and  that  therefore 
a  sale  of  any  growing  produce  of  the  earth,  reared  by  labor  and 
expense,  in  actual  existence  at  the  time  of  the  contract,  whether 
it  be  in  a  state  of  maturity  or  not,  is  not  to  be  considered  a  sale 
of  an  interest  in  or  concerning  land.^  In  regard  to  things  pro- 
duced annually  by  the  labor  of  man,  the  question  is  sometimes 
solved  by  reference  to  the  law  of  emblements :  on  the  ground, 
that  whatever  wilj^  go  to  the  executor,  the  tenant  being  dead,  \ 
canjaot  b^  considered  as  an  interest  in  laiicLf^  But  the  case  seem 
also  to  be  covered  by  a  broader  principle  of  distinction,  namely,] 
between  contracts  conferring  an  exclusive  right  to  the  land  for 
a  time,  for  the  purpose  of  making  a  'profit  of  the  growing  surface 
and  contracts  for  things  annexed  to  the  freehold,  in  prospect  of 
their  immediate  separation;  from  which  it  seems  to  result,  that 
where  timber,  or  other  produce  of  the  land,  or  any  other  thing 
annexed  to  the  freehold,  is  specifically  sold,  whether  it  is  to  be 
severed  from  the  soil  by  the  vendor,  or  to  be  taken  by  the  vendee, 
under  a  special  license  to  enter  for  that  purpose,  it  is  still  in  the 
contemplation  of  the  parties,  evidently  and-  substantially  a  sale 
of  goods  only,  and  so  is  not  within  the  statute.* 

1  Warwick  v.  Bruce,  2  M.  &  S.  205.  *  Roberts  on  Frauds,  p.  126 ;  4  Kent, 

The  contract  was  made  on  the  12th  of  Comm.   450,   451 ;    Long    on    Sales    (by 

October  when  tlie  crop  was  at  its  niatu-  Rand),  pp.  76-81,  and  cases  there  cited; 

rity;  and  it  would  seem  that  the  potatoes  Chitty  on   Contracts,  p.   241   (2d   edit.); 

wore   forthwith    to    be    digged    and    re-  Bank  of  Lansingburg  r.  Crary,  1  Barb, 

moved.  542.     On  this  subject  neitlier  the  English 

-  Evans  v.  Roberts,   5  B.   &  C.  829 ;  nor  the  American  decisions  arc  quite  uni- 

Jones  V.  Elint,  10  Ad.  &  El.  753.  form ;  but  tlie  weight  of  authority  is  be- 

•'  See  observations  of  the  learned  lieved  to  be  as  stated  in  the  text,  though 
judges,  in  Evans  v.  Roberts,  5  B.  &  C.  it  is  true  of  the  former,  as  Ld.  Abinger 
829.  See  also  Rodwell  v.  riiillips,  9  M.  remarked  in  liodwell  v.  Phillips,  9  M.  & 
&  AV.  501,  where  it  was  held,  tliat  an  W.  505,  that  "no  general  rule  is  laid 
agreement  for  the  sale  of  growing  jian-f;  down  in  any  one  of  them,  that  is  not  con- 
was  an  agreement  for  the  sale  of  an  inter-  tradicted  by  some  others."  See  also 
est  in  land,  on  the  principle,  that  the  Boulter  v.  Killingbeck,  1  B.  &  P.  398; 
fruit  would  not  pass  to  the  e.xecutor,  but  Parker  v.  Staniland,  11  East,  362,  distin- 
would  descend  to  the  heir.  The  learned  guishing  and  qualitying  Crosby  o.  Wads- 
Chief  Haron  distinguished  this  case  from  worth,  6  l>ast,  611;  Smith  v.  Surman,  9 
Smith  ;;.  Surman,  9  B.  &  C.  561,  the  lat-  B.  &  C.  561 ;  Watts  v.  Friend,  10  B.  &  C. 
ter  being  the  case  of  a  sale  of  growing  446.  The  distinction  taken  in  Boslwick  r. 
timber  by  the  foot,  and  so  treated  hi/  t/ie  Leach,  3  Day,  476,  484,  is  this,  that  when 
parties  as  if  it  had  been  actually  felled ; —  there  is  a  sale  of  property,  which  would 
a  distinction  which  confirms  the  view  sub-  pass  by  a  deed  of  land,  as  such,  without 
sequently  tiiken  in  the  text.  any  other  description,  if  it  can  be  sepa- 


CHAP.  XIV.] 


STATUTE    OP    FRAUDS. 


307 


§  272.  Devises  of  lands  and  tenements  arc  also  required  to  be  in 
writing,  signed  by  the  testator,  and  attested  l)y  credible,  that  is, 
by  competent  witnesses.  By  the  statutes,  32  lien.  VIII,  c.  1.  and 
34  &  35  Hen.  YIIL,  c.  5,  devises  were  merely  required  to  be  in 
writing.  The  Statute  of  Frauds,  29  Car.  II.,  c.  3,  rc(iuired  the 
attestation  of  "  three  or  four  credible  witnesses  ;  "  Init  the  statute  1 
Vict.  c.  26,  has  reduced  the  number  of  witnesses  to  two.  The  pro- 
visions of  the  Statute  of  Frauds  on  this  subject  have  been  adopted 
in  most  of  the  United  States.^     It  requires  that  the  witnesses 


rated  from  the  freehold,  and  by  the  con- 
tract is  to  be  separated,  such  contract  is 
not  witlnn  the  statute.  8ee  accordingly, 
Wiiipple  ('.  Foot,  2  Johns.  418,  422  ;  Frear 
V.  llanlenberjih,  5  Johns.  270;  Sicwart  f. 
Douivhty,  y  Johns.  108,  112;  Austin  v. 
Sawyer,  9  Cowen,  39 ;  ICrskine  i".  i'lum- 
nier,  7  Greenl.  447  ;  Bishop  r.  Dotv,  1 
Vermont,  R.  38;  Miller  v.  Baker,  1  Met. 
27;  Whitmarsh  r.  Walker,  Id.  olo  ;  Claf- 
lin  i\  Carpenter,  4  Met.  580.  Mr.  Rand, 
who  has  treated  this  subject,  as  well  as  all 
others  on  which  he  has  written,  with 
great  learning  and  acumen,  would  recon- 
cile the  English  authorities,  by  distin- 
guishing between  those  cases  in  which 
the  subject  of  the  contract,  being  part  of 
the  inheritance,  is  to  be  severed  and  de- 
livered by  the  vendor,  as  a  chattel,  and 
those  in  which  a  right  of  entry  by  the 
vendee  to  cut  and  take  it  is  bargained  for. 
"  The  authorities,"  says  he,  "  all  agree  in 
this,  that  a  bargain  for  trees,  grass,  crops, 
or  any  such  like  thing,  when  severed 
from  the  soil,  which  are  growing,  at  the 
time  of  the  contract,  upon  the  soil,  but  to 
be  severed  and  delivered  by  the  vendor, 
as  chattels,  separate  from  any  interest  in 
the  soil,  is  a  contract  for  the  sale  of  goods, 
wares,  or  merchandise,  within  the  mean- 
ing of  the  seventeentli  section  of  the  Stat- 
ute of  Frauds.  (Smith  r.  Surman,  9  B. 
&  C.  561;  Evans  v.  Roberts,  5  B.  &  C. 
836;  Watts  v.  Friend,  16  B.  &  C.  446; 
Parker  i-.  Staniland,  11  East,  362;  War- 
wick V.  Bruce,  2  M.  &  S.  205.)  So, 
where  the  subject-matter  of  the  bargain  is 
fnictiis  iiii/iisiridlis,  such  as  corn,  garden- 
roots,  and  such  like  things,  which  are  em- 
blements, and  which  have  already  grown 
to  maturity,  and  are  to  be  taken  innnedi- 
ately,  and  no  right  of  entry  forms  abso- 
lutely part  of  tlie  contract,  but  a  mere 
license  is  given  to  the  vendee  to  enter  and 
take  them,  it  will  fall  within  the  operation 
of  tiie  same  section  of  tlie  statute.  (War- 
wick r.  Bruce,  2  M.  &  S  205 ;  Parker  v. 
Staniland,  11  East,  362;  Park,  B.,  Car- 
rington  c.  Roots,  2  M.  &  W.  256 ;  Bayley, 


B.,  Shelton  r.  Livius,  2  Tyrw.  427,  429 ; 
Baylev,  J.,  Evans  i;.  Roberts,  5  B.  &  C. 
831;  Scorell  v.  Boxall,  1  Y.  &  J.  398; 
Mayfield  v.  Wadsley,  3  B.  &  C.  357.) 
But  where  the  subject-matter  of  the  con- 
tract constitutes  a  part  of  the  inheritance, 
and  is  not  to  be  severed  and  delivered  by 
the  vendor  as  a  chattel,  but  a  right  of 
entry  to  cut  and  take  it  is  bargained  for, 
or,  where  it  is  emblements  growing,  and 
a  right  in  the  soil  to  grow  and  bring  tliem 
to  maturity,  and  to  enter  and  tiike  them, 
that  makes  part  of  the  bargain,  the  case 
will  tall  within  the  fourth  section  of  the 
Statute  of  Frauds.  ( Carrington  v.  Roots, 
2  M.  &  W.  257 ;  Shelton  v.  Livius,  2 
Tyrw.  429 ;  Scorell  v.  Boxall,  1  Y.  &  J. 
398 ;  Earl  of  Falmouth  r.  Thomas,  1  Cr. 
&  M.  89 ;  Teal  r.  Auty,  2  B.  &  Bing.  99 ; 
Emmerson  v.  Heelis,  2  Taunt.  38 ;  Wad- 
dington  v.  Bristow,  2  B.  &  P.  452 ;  Cros- 
by V.  Wadsworth,  5  East.  002.)"  See 
Long  on  Sales  (by  Rand),  pp.  80,  81. 
But  the  latter  English  ami  the  Americ.in 
authorities  do  not  seem  to  recognize  such 
distinction.  [See  also  Browne  on  Stat, 
of  Frauds,  §§  235-257.] 

1  In  Nciv  Hampshire  alone  the  will  is 
required  to  be  scaled.  Three  witnesses 
are  necessary  to  a  valid  will  in  Vermont, 
Xciv  lldinjisliire,  Maine,  Massachii.setts, 
Rliode  Island,  Connecticut,  Neiv  Jersey, 
Maryland,  South  Carolina,  Georgia,  Flori- 
da, Alabama,  and  Mississippi.  Two  wit- 
nesses only  are  requisite  in  New  York, 
Delaware,  Virginia,  Ohio,  Illimis,  Indiana, 
Missouri,  Tennessee,  yorlh  Carolina,  Michi- 
gan, Wisconsin,  Arkansas,  and  Kentucky. 
In  some  of  the  states,  the  provision  as  to 
attestation  is  more  special.  In  Pennsyl- 
vania, a  devise  is  good,  if  jtroperly  signed, 
though  it  is  not  subscribed  by  any  attest- 
ing witness,  provided  it  can  be  proved  by 
two  or  more  comiietent  witnesses  ;  and  if 
it  be  attested  by  witnesses,  it  nuiy  still  be 
proved  by  others.  4  Kent,  Connn.  514. 
See  po.'it,  vol.  2,  tit.  Wii.i.s,  [7th  edit. 
(1858,1  §§  673-678,  and  notes.]  See  fur- 
ther,  as    to    the    execution   of  Wills,   6 


308  LAW    OF    EVIDENCE.  [PART    II. 

should  attest  and  subscribe  tlie  will  in  the  testator's  presence. 
Tlie  attestation  of  marksmen  is  sufficient ;  and,  ii'  they  are  dead, 
the  attestation  may  be  proved  by  evidence,  that  they  lived  near  the 
testator,  that  no  otliers  of  tlie  same  name  resided  in  the  neighbor- 
hood, and  that  they  were  illiterate  persons.^  One  object  of  this 
provision  is,  to  prevent  the  substitution  of  another  instrument  for 
the  genuine  will.  It  is  therefore  held,  that  to  be  present,  within 
the  meaning  of  the  statute,  though  the  testator  need  not  be  in  the 
same  room,  yet  he  must  be  near  enough  to  see  and  identify  the 
instrument,  if  he  is  so  disposed,  though  in  truth  he  does  not 
attempt  to  do  so ;  and  that  he  must  have  mental  knowledge  and 
consciousness  of  the  fact.^  If  he  be  in  a  state  of  insensibility  at 
the  moment  of  attestation,  it  is  void.^  Being  in  the  same  room 
is  held  j9>7';»(?  facie  evidence  of  an  attestation  in  his  presence; 
as  an  attestation,  not  made  in  the  same  room,  is  primd  facie  not 
an  attestation  in  his  presence.'^  It  is  not  necessary,  under  the 
Statute  of  Frauds,  that  the  witnesses  should  attest  in  the  presence 
of  each  other,  nor  tliat  they  should  all  attest  at  the  same  time ;  ^ 
iiior  is  it  reQ[uisite  that  they  should  actually  have  seen_  tlie  testator 
sign,  or  known  wiiat  the  paper  was,  provided  they  subscribed  the 
instrument  in  his  presence  and  at  his  request.*^     Neither  has  it 

>    ~'~~~u ii'fi— n~     I  I   ■111!      — -■  — n^tiianrriwii^iiii  Mi  iM  iw  iwi«  i  m      hui    i  imii'mphih  ■!— Hibw  i  i    m        i 

Cruise's  Dig.  tit.  38,  ch.  5,  Grecnleaf  s  will  shall  be  valid  unless  it  be  in  writing, 

notes;    [2d   e<lit.    (1857)    pp.   47-80,  and  signed  by  tiie  testiitor  in  the  i)resence  of 

notes ;]  1  Jarman  on  Wills,  ch.  G,  by  Per-  two  witnesses  at  one  time.     See  Moore  v. 

kins.  KiniT,  3  Curt.  243;  in  the  goods  of  Sim- 

1  Doe   V.   Caperton,   9    C.    &   P.   112;  nionds.  Id.  79. 

Jackson   v.   Van   Duscn,    5  Johns.   144;  •>  White  y.  Trustees  of  the  British  Mu- 

Doe  V.  Davis,  11  Jur.  182.  seum,  6  Bing.  310;  Wriglit  v.  Wright,  7 

■^  Shires  v.  Glascock,  2  Salk.  088  (by  Bing.  457 ;  Dewey  i'.  Dewey,  1  JNlet.  349 ; 

Evans),  and  cases  cited  in  notes;  4  Kent,  Jolinson  v.  Johnson,  1   C.  &  j\I.  140.     In 

Comni.  515,  olfi ;  Casson  r.  Dade,  1  Bro.  tliese  cases,   the   court  certainly  seem  t5 

Cli.  K.  99;  Doe  v.  Manifold,  1  M.  &  S-  regard  the   knowledge  of  the  witnesses, 

294;  Tod  v.  E.  of  Winchelsea,  1  M.  &  M.  tiiat  tlie  instrument  was  a  will,  as  a  niat- 

12;  2  C.  &  P.  488;  Hill  v.  Barge,  12  Ala.  ter  of  no  importance;  since  in  the  flrst 

687.  two  cases  only  one  of  the  witnesses  knew 

•*  Right  V.  Price,  Doug.  241.  wliat  tlie  i)a])er  was.     But  it  deserves  to 

*  Neil  V.   Neil,  1   Leigii,  K.  6,  10-21,  be  considered  whether  in  sucli  case,  the 

■where  the  cases  on  this  subject  are  ably  attention  of  tlic  witness  would  jirobably 

reviewed  by  Carr,  J.     If  the  two  rooms  be   drawn   to   tlie   state  of  the  testator's 

have  a  communication  by  folding-doors,  it  mind,  in  regard  to  his  sanity;  for  if  not, 

is  still  to  be  ascertained  whetlier,  in  fact,  one  object  of  the  statute  would  be  defeat- 

thc  testator  could  have  seen  the  witnesses  ed.     See  Rutiierlord  r.  Kutiierford,  1  De- 

in  tiie  act  of  attestation.     In  the  goods  of  nio,  33;  Brinkerhoff  r.  Pemscn,  8  Paige, 

Colman,  3  Cm-t.  118.  488;  2f>   Wend.  325;  Cliatlee  v.  Baptist, 

°  Cook  i\  Parsons,  Prec.  in  Chan.  184;  M.  C.  10  Paige,  85;  1  Jarni.  on  Wills. (by 

Jones  I'.  Lake,  2  Atk.  177,  in  note;  Gray-  Perkins),  p.  114;  G  Cruise's  Dig.  tit.  38, 

son  V.  Atkin,  2  Ves.  455;  Dewey  v.  Dew-  ch.  5,  §  14,  note  (Greenleaf's  edit.),  [2d 

ey,  1   Met.  349;  1  Williams  on  Executors  edit.  1857,  vol.  3,  p.  53,  and  note.]     See 

(by  Troubat),  p.  4(5,  note  (2.)     The  stat-  fuVther,  as  to  proof  by  subscribing  wit- 

ute  of  I   Vict.  c.  25,  §  9,  has  altered  the  nesses,  infra,  §§  569,  569  a,  572. 
law  in  this  respect,  by  enacting  that  no 


CHAP.  XIV.] 


STATUTE   OF   FRAUDS. 


309 


been  considered  necessary,  under  tliis  statute,  that  the  testator 
should  subscribe  the  instrument ;  it  being  deemed  sufficient  that  it 
be  signed  by  him  in  any  part,  with  his  own  name  or  mark,  provided 
it  appear  to  have  been  done  animo  perficiendi,  and  to  have  been 
regarded  by  him  as  completely  executed.^  Thus,  where  the  will 
was  signed  in  the  margin  only ;  or  where,  being  written  by  the 
testator  himself,  his  name  was  written  only  in  the  beginning  of 
the  will,  I,  A.  B.,  &c.,  this  was  held  a  sufficient  signing.^  But 
where  it  appeared  that  the  testator  intended  to  sign  each  several 
sheet  of  the  will,  but  signed  only  two  of  them,  being  unable,  from 
extreme  weakness,  to  sign  the  others,  it  was  held  incomplete.^ 

§  273.  By  the  Statute  of  Frauds,  the  revocation  of  a  tvill,  by  the 
direct  act  of  the  testator,  must  be  proved  by  some  subsequent  will 
or  codicil,  inconsistent  with  the  former ;  or  by  some  other  writing, 
declaring  the  same,  and  signed  in  the  presence  of  three  witnesses ; 
or  by  burning,  tearing,  cancelling,  or  obliterating  the  same  by  the 
testator,  or  in  his  presence  and  by  liis  direction  and  consent.* 
It  is  observable,  that  this  part  of  the  statute  only  requires  that 
the  instrument  of  revocation,  if  not  a  will  or  codicil,  be  signed  by 
the  testator  in  presence  of  the  witnesses,  but  it  (foes  not,  as  in  the 


1  That  the  party's  mark  or  initials  is  a 
snfBcient  signature  to  any  instrument,  be- 
iii_<|'  placed  there  with  intent  to  bind  him- 
self, in  all  cases  not  otherwise  ret;;ulated 
by  statute,  see  Baker  v.  Dening,  8  Ad.  & 
El.  94 ;  Jackson  v.  Van  Dusen,  5  Johns. 
144 ;  Palmer  v.  Stephens,  1  Den.  471,  and 
tlie  cases  cited  in  0  Cruise's  Dig.  tit.  S8, 
ch.  5,  §§  7,  V.K  notes  (Greenleaf  s  edit.), 
[•2d  edit.  (1857)  vol.  3,  pp.  50-56];  post, 
vol.  2,  §  677. 

2  Lemaine  v.  Stanley,  3  Lev.  1 ;  Mor- 
rison V.  Tumour,  18  Ves.  183.  But  this 
also  is  now  clianged  by  the  statute  1  Vict. 
c.  26,  §  9,  by  which  no  will  is  valid  unless 
it  be  signed  at  the  foot  or  end  thereof,  by 
the  testator,  or  by  some  other  person,  in 
his  presence  and  by  his  direction ;  as  well 
as  attested  by  two  witnesses,  subscribing 
their  names  in  his  jiresence.  See  in  the 
goods  of  Carver,  3  Curt.  29. 

3  Kight  r.  Price,  Doug.  241.  The  Stat- 
ute of  Frauds,  which  has  been  generally 
followed  in  the  United  States,  admitted 
exceptions  in  lavor  of  nuncupative  or  ver- 
bal wills,  made  under  certain  circum- 
stances tlierein  mentioned,  as  well  as  in 
favor  of  parol  testamentary  dispositions  of 
personalty,  by  soldiers  in  actual  service, 
and  by  mariners  at  sea ;  any  further  notice 
of  which  would  be  foreign  fi'om  the  plan 


of  this  treatise.  The  latter  exceptions  still 
exist  in  England;  but  nuncupative  wills 
.seem  to  be  abolished  there,  by  the  general 
terms  of  the  statute  of  1  Vict.  c.  26,  §  9, 
before  cited.  The  common  law,  which 
allows  a  bequest  of  personal  estate  by  pa- 
rol, without  writing,  has  been  altered  by 
statute  in  most,  if  not  all  of  the  United 
States ;  the  course  of  legislation  having 
tended  strongly  to  the  abolition  of  all  dis- 
tinctions between  the  requisites  for  the 
testamentary  disposition  of  real  and  of 
jiersonal  property.  See  4  Kent,  Comm. 
51(J-V2(> ;  Lovelass  on  Wills,  pp.  315-319 ; 
1  Williams  on  Executors  (by  Troubat), 
pp.  46-48,  notes;  1  Jarman  on  Wills  (by 
Perkins),  p.  [90]  132,  note;  6  Cruise's 
Dig.  (by  Greenleaf),  tit.  38,  ch.  5,  §  14, 
note;  [2d  edit.  (1857)  vol.  3,  p.  53,  and 
note]. 

*  Stat.  29  Car.  II.,  c.  3,  §  6.  The  stat- 
ute of  1  Vict.  c.  26,  §  20,  mentions  "  burn- 
ing, tearing,  or  otherwise  destroying  the 
same,"  &c.  And  see  further,  as  to  the 
evidence  of  revocation,  6  Cruise's  Dig. 
(by  Greenleaf),  tit.  38,  ch.  6,  §§  18,  19, 
29,  notes;  [2d  edit.  (1857)  vol.  3,  p.  81  et 
ser/.;  2  Greenl.  Evid.  (7th  edit.)  §  680- 
687;]  1  Jarman  on  Wills  (by  Perkins), 
ch.  7,  §  2,  notes. 


310 


LAW   OP    EVIDENCE. 


[part  II. 


execution  of  a  will,  require  that  the  witnesses  should  sign  in  his 
presence.  In  regard  to  the  other  acts  of  revocation  here  mentioned, 
they  operate  by  one  common  i)rinciple,  namely,  the  intent  of  the 
testator.  Revocation  is  an  act  of  the  mind,  demonstrated  by  some 
outward  and  visible  sign  or  symbol  of  revocation ;  ^  and  the  words 
of  the  statute  are  satisfied  by  any  act  of  spoliation,  reprobation,  or 
destruction,  deliberately  done  upon  the  instrument,  animo  revo- 
candi'^  The  declarations  of  the  testator,  accompanying  the  act, 
are  of  course  admissible  in  evidence  as  explanatory  of  his  inten- 
tion.^ Accordingly,  where  the  testator  rumpled  up  his  will  and 
threw  it  into  the  fire  with  intent  to  destroy  it,  though  it  was  saved 
entire  without  his  knowledge,  tliis  was  held  to  be  a  revocation.'* 
So,  where  he  tore  off  a  superfluous  seal.^  But  where,  being  angry 
with  the  devisee,  he  began  to  tear  his  will,  but  being  afterwards 
pacified,  he  fitted  the  pieces  carefully  together,  saying  he  was  glad 
it  was  no  worse,  this  was  held  to  be  no  revocation.** 

§  274.  Documentary  evidence  is  also  required  in  proof  of  the 
contract  of  appreiiticeship ;  there  being  no  legal  binding,  to  give 
the  master  coercive  power  over  the  person  of  the  apprentice,  unless 
it  be  by  indentures,  duly  executed  in  the  forms  prescribed  by  the 
various  statutes  on  this  subject.  The  general  features  of  the  Eng- 
lish statutes  of  apprenticeship,  so  far  as  the  mode  of  binding  is 
concerned,  will  be  found  in  those  of  most  of  the  United  States. 
There  are  various  other  cases,  in  which  a  deed,  or  other  docu- 
mentary evidence  is  required  by  statutes,  a  particular  enumeration 
of  which  would  be  foreign  from  the  plan  of  this  treatise.'^ 


1  Bibb  V.  Tliomas,  2  \V.  Bl.  1043. 

2  Burtensliaw  v.  Gilbert,  Cowp.  49,  52; 
Burns  v.  Burns,  4  S.  &  11.  567 ;  6  Cruise's 
Dig.  (by  Greenieaf)  tit.  38,  cb.  6,  §  54; 
Jobnson  i'.  Brailstord,  2  Nott  &  McC.  272 ; 
Winsor  v.  Pratt,  2  B.  &  B.  050;  Lovelass 
on  Wills,  pp.  346-350 ;  Card  v.  Grinman,  5 
Conn.  168;  4  Kent,  Conim.  531,  532. 

3  Dan  V.  Brown,  4  Cowen,  490. 

4  Bibb  V.  Tbonias,  2  W.  Bl.  1043. 
''  Avery  v.  Pi.xley,  4  Mass.  462. 

6  Doe  V.  Perkes,  3  B.  &  Aid.  489. 

'  In  several  of  the  United  States,  two 


subscribing  witnesses  are  necessary  to  the 
execution  of  a  deed  of  conversance  of  lands 
to  entitle  it  to  registration  ;  in  others,  but 
one.  In  some  others,  the  testimony  of 
two  witnesses  is  requisite,  when  the  deed 
is  to  be  proved  by  witnesses.  See  supra, 
§  260,  note ;  4  Cruise's  Dig.  tit.  32,  c.  2, 
§  77,  note  (Greenleaf's  edit.),  [2d  edit. 
(1856)  vol.  2,  p.  341;]  4  Kent,  Comm. 
457.  See  also  post,  vol.  2  [7th  edit. 
1858],  tit.  Wills,  passim,  where  the  sub- 
ject of  Wills  is  uiore  amply  treated. 


CHAP.  XV.]  ADMISSIBILITY   OF   PAROL   EVIDENCE.  311 


CHAPTER    XV. 


OF   THE   ADMISSIBILITY   OF    PAROL    OR    VERBAL    EVIDENCE    TO   AFFECT 
THAT   WHICH   IS    WRITTEN  .^ 

[*  §  275.  "Written  instruments  cannot  be  controlled  by  parol  evidence.  ^  '^  ] 

276.  This  rule  applies  as  well  to  simple  contracts  as  to  specialties. 

277.  The  rule  does  not  exclude  proof  of  surrounding  circumstances. 

278.  Ordinary  meaning  of  words  to  prevail,  with  some  exceptions. 

279.  The  rule  only  applies  to  the  parties  to  the  instrument. 

280.  Scientific  evidence  admissible  to  prove  import  of  terms. 

281.  Numerous  instances  where  parol  evidence  was  rejected. 

282.  The  rule  does  not  exclude  evidence  showing  the  import  of  terms. 
282a.  Brief  epitome  of  some  of  the  recent  decisions. 

283.  Different  cotemporaneous  writings  may  be  construed  together. 

284.  It  may  be  shown  that  the  writing  is  void,  or  never  took  effect. 

284a.  Where  part  of  the  contract  is  left  out  of  the  writing,  it  may  be  proved  hj 
parol. 

285.  Admissible  to  prove  time  of  execution,  additional  consideration,  &c. 

286.  The   extent  of  the   subject-matter,  and  whether  parcel  or  not,  may  be 
♦  proved. 

287.  This  is  indispensable  to  place  the  court  in  the  position  of  the  parties. 

288.  To  what  extent  extraneous  evidence  is  admissible  to  define  subject-matter- 
288o.  Summary  of  late  decisions. 

2886.  Distinction  between  province  of  court  and  jury. 

289.  Lord  Abinger's  opinion  upon  the  construction  of  wills. 

290.  Proof  of  testator's  intention  is  admissible  only  in  cases  of  latent  ambiguity. 

291.  The  subject  further  illustrated  by  reference  to  the  cases. 

292.  Usage  admissible  to  explain,  but  not  to  contradict  words. 

293.  The  acts  of  the  parties  admissible  to  fix  construction. 

294.  Parol  evidence  admissible  to  annex  incidents  and   explain  the  import  of 

terms. 

295.  Also  to  show  that  the  terms  used  have  a  local  and  special  meaning. 

295a.  The  true  ground  of  receiving  it  is  to  place  the  court  in  the  position  of  the 
parties. 

296.  Admissible  to  rebut  an  equity.     Ademption  of  portion  or  legacy. 
296a.  Courts  of  equity  correct  mistakes  in  written  contracts. 

297.  Lord  Bacon's  definition  of  the  distinction  between  latent  and  patent  am- 

biguities. 

1  The  subject  of  this  chapter  is  ably  and  in  1  Smith's  Leading  Cases,  pp.  410- 
discussed  in  Spence  on  the  Equitable  Ju-  418  [305-310J,  with  JLIai-e  &  Wallace's 
risdiction  of  Chancery,  vol.  1,  pp.  553-675,    notes. 


812  LAW   OF   EVIDENCE.  [PART  II. 

§  298.  A  writing  is  not  ambiguous,  unless  it  remain  so  after  resorting  to  all  admis- 
sible aids  to  the  construction. 
2t)8a.  Tiie   court   may   enter  up   correct  judgment,   notwithstanding  improper 
proof  admitted. 

299.  Sir  James  Wigram's  distinction  between  inaccuracy  and  ambiguity  of  lan- 

guage. 

300.  Obscurity  in  language  cannot  be  removed  by  oral  proof. 

301.  An  error  in  the  description  not  fatiil  if  still  intelligible. 

302.  Written  contracts  may  be  superseded  or  modified  by  parol. 

303.  So  parol  evidence  is  admissible  to  prove  a  new  agreement. 

304.  To  what  extent  written  contracts  may  be  enlarged  by  parol. 

305.  Receipt  may  be  explained  by  parol  evidence.] 

§  275.  By  ivritten  evidence^  in  this  place,  is  meant  not  every 
tiling  which  is  in  writing,  but  that  only  which  is  of  a  documen- 
tary and  more  solemn  nature,  containing  the  terms  of  a  contract 
between  the  parties,  and  designed  to  be  the  repository  and  evi- 
dence of  their  final  intentions.  Fiunt  enim  de  his  \_co7itractibus^ 
scripturcB,  ut,  quod  actum  est,  per  eas  faciliils  prohari  poterit}  When 
parties  have  deliberately  put  tlieir  engagements  into  writing,  in 
such  terms  as  import  a  legal  obligation,  without  any  uncertainty 
as  to  the  object  or  extent  of  such  engagement,  it  is  conclusively 
presumed  that  the  whole  engagement  of  the  parties,  and  the 
extent  and  manner  of  their  undertaking,  was  reduced  to  writing  ; 
and  all  oral  testimony  of  a  previous  colloquium  between  the  par- 
ties, or  of  conversation  or  declarations  at  the  time  when  it  was 
completed,  or  afterwards,  as  it  would  tend,  in  many  instances  to 
substitute  a  new  and  different  contract  for  the  one  which  was 
really  agreed  upon,  to  the  prejudice,  possibly,  of  one  of  the  par- 
ties, is  rejected.^  In  other  words,  as  the  rule  is  now  more  briefly 
expressed,  t':  parol  contemporaneous  evidence  is  inadmissible,  to 
contradict  or  vary  the  terms  of  a  valid  written  instriimeut."  ^ 

1  Dig.  lib.  20,  tit.  1,1.  4;  Id.  lib.  22,  Civil  Law,  —  Contra  scriptum  testimoni- 
tit.  4,  1.  4.  um,  non  scriptum  testimonium  non  fertur. 

2  Stackpole  v.  Arnold,  11  Mass.  30,  31,     Cod.  lib.  4,  tit.  20,  1.  1. 

per  Parker,  J.;  Preston  v.  Merceau,  2  W.  =*  Phil.  &  Am.  on  Evid.  p.  753;  2  Phil. 
Bl.  1249;  Coker  v.  Guy,  2  B.  &  P.  565,  Evid.  350;  2  Stark.  Evid.  544,  548;  Ad- 
569 ;  Bogert  v.  Cauman,  Anthon's  11.  70 ;  ams  v.  Wordley,  1  M.  &  W.  379,  380, 
Baj'ard  v.  Malcolm,  1  .Johns.  4()7,  per  per  Parke,  B.;  Boorman  i'.  Johnston,  12 
Kent,  C.  J.;  Kich  v.  .Jackson,  4  Bro.  Cii.  Wend.  .578.  [*'rinis  the  entry  in  a  court 
K.  519,  per  Ld.  Thurlow ;  Sinclair  v.  Ste-  of  record  into  which  a  recognizance  is  re- 
venson,  1  C.  &  P.  582,  per  Best,  C.  J. ;  tuniMble,  that  the  jn-incipal  made  default, 
McLellan  w.  The  Cumberland  Bank,  11  cainiot  be  contradicted  i)y  parol  evidence, 
Shepl.  666.  The  general  rule  of  thfe  on  scire  faruvi,  against  the  bail.  Common- 
Scotch  law  is  to  the  same  effect,  namely,  wealtii  v.  Slocum,  14  Gray,  395.  Nor  can 
that  "  writing  cannot  be  cut  down  or  taken  an  official  entry  on  a  record,  void  for  un- 
away,  by  the  testimony  of  witnesses."  certainty,  he  explained  by  extrinsic  evi- 
Tait  on  i'^vid.  pp.  326,  827.  And  this,  in  dence.  Porter  v.  Byrne,  lo  Ind.  146.] 
other  language,  is  the  rule  of  the  Iloman 


CHAP.  XV.]  ADMISSIBILITY   OF   PAROL   EVIDENCE. 


313 


§  276.  This  rule  "  was  introduced  in  early  times,  when  the  most 
frequent  mode  of  ascertaining  a  party  to  a  contract  was  by  his  seal 
affixed  to  the  instrument ;    and  it  has  been  continued  in  force, 
since  the  vast  multiplication  of  written  contracts,  in  consequence 
of  the  increased  business  and  commerce  of  the  world.     It  is  not   j 
because  a  seal  is  put  to  the  contract,  that  it  shall  not  be  explained  *  i 
away,  varied,  or  rendered  ineffectual ;   but  because  the  contract    a     ^ 
itself  is  plainly  and  intelligibly  stated,  in  the  language  of  the  par-  >J  i^ 
ties,  and  is  the  best  possible  evidence  of  the  intent  and  meaning    S  >A 
of  those  who  are  bound  by  the  contract,  and  of  those  who  are  to    T""  ^ 
receive  the  benefit  of  it."     "  The  rule  of  excluding  oral  testimony   ^  ■ 
has  heretofore  been  applied  generally,  if  not  universally,  to  simple 
contracts  in  writing,  to  the  same  extent  and  with  the  sa-me  excep-  i 
tions  as  to  specialties  or  contracts  under  scal.''^ 

§  277.  It  is  to  be  observed,  that  the  rule  is  directed  only  against 
the  admission  of  any  other  evidence  of  the  language  em})loyed  by 
the  parties  in  making  the  contract,  than  that  which  is  furnished 
by  the  writing  itself.     The  writing,  it  is  true,  may  be  read  by  the 
light  of  surrounding  circumstances,  in  order  more  perfectly  to 
understand  the  intent  and  meaning  of  the  parties ;   but,  as  they^  ^ 
have  constituted  the  writing  to  be  the  only  outward  and  visible  \ 
expression  of  their  meaning,  no  other  ivords  are  to  be  added  to  it, 
or  substituted  in  its  stead.     The  duty  of  the  court  in  such  cases,    -^ 
is  to  ascertain,  not  what  the  parties  may  have  secretly  intended,  as  *yv 
contradistinguished  from  what  their  words  express ;  but  what  is 
the  meaning  of  words  they  have  used.^     It  is  merely  a  duty  of 
interpretation  ;  that  is,  to  find  out  the  true  sense  of  the  written 
words,  as  the  parties  used  them ;    and  of  construction,  that  is, 
when  the  true  sense  is  ascertained,  to  subject  the  instrument,  in  its 
operation,  to  the  established  rules  of  law.^     And  where  the  lan- 


1  Per  Parker,  J.,  in  Stackpole  v.  Ar- 
nold, 11  Mass.  31.  See  also  Woolam  v. 
Hearn,  7  Ves.  218,  per  Sir  William  Grant; 
Hunt  V.  Adams,  7  Mass.  522,  per  Sew- 
all,  J. 

-  Doe  V.  Gwillim,  5  B  &  Ad.  122,  129, 
per  Parke,  J. ;  Doe  v.  Martin,  4  B.  &  Ad. 
771,  7b(),  per  Parke,  J. ;  Beaumont  v. 
Field,  2  Chitty's  K.  275,  per  Abbott,  C.  J. 
See  (';///•((,  §  295.  [And  where  a  written 
instrument  is  lost,  and  parol  evidonie  is 
given  of  its  contents,  its  construction  still 
remains  the  duty  of  the  court.  Berwick 
V.  Uorsfall,  4  Com.  B.  Keps.  n.  s.  450.] 

8  The  subject  of  Interpretation  and 
VOL.  I.  27 


Constniction  is  ably  treated  by  Professor 
Lieber,  in  his  Legal  and  Political  Herme- 
neutics,  ch.  1,  §  H.  and  cii.  3,  §§  2,  3.  And 
see  Doct.  &  Si.  3'J,  c.  24.  Tlie  interpre- 
tation, as  well  as  the  construction  of  a 
written  instrument,  is  for  the  court,  and 
not  for  the  jury.  But  other  questions  of 
intent,  in  tact,  are  for  tlie  jury.  The 
court,  however,  where  the  meaning  is 
doubtful,  will,  in  proper  cases,  receive 
evidence  in  aid  of  its  judgment.  Story 
on  Agenc}',  §  03,  note  (1);  Paley  on 
Agency,  by  Lloyd,  p.  I'.l^,  n.;  supra,  § 
4'J;  Hiitclunsou'i'.  Bowker,  5  M.  &  W. 
535;  and  where  it  is  doubtful  whether  a 


314  LAW   OF   EVIDENCE.  [PART  II. 

giiage  of  an  instrument  has  a  settled  legal  construction,  parol 
evidence  is  not  admissible  to  contradict  that  construction.  Thus, 
wliere  no  time  is  exj)rcssly  limited  lor  the  payment  of  the  money 
mentioned  in  a  special  contract  in  writing,  the  legal  construction 
is,  that  it  is  })ayable  presently ;  and  jjarol  evidence  of  a  contempo- 
raneous verbal  agreement,  for  the  payment  at  a  future  day,  is  not 
admissible.^ 

§  278.  The  terms  of  every  written  instrument  are  to  be  undei^ 
stood  in  their  plain,  ordinary,  and  pojoular  sense,  unless  they  have 
generally,  in  respect  to  the  subject-matter,  as,  by  the  known  usage 
of  trade,  or  the  like,  acquired  a  peculiar  sense,  distinct  from  the 
popular  sense  of  the  same  words ;  or  unless  the  context  evidently 
points  out  that,  in  the  particular  instance,  and  in  order  to  effectu- 
ate the  immediate  intention  of  the  parties,  it  should  be  understood 
in  some  other  and  peculiar  sense.  But  where  the  instrument  con- 
sists partly  of  a  printed  formula,  and  partly  of  written  words,  if 
there  is  any  reasonable  doubt  of  tlie  meaning  of  tlie  whole,  the 
tvritten  words  are  entitled  to  have  greater  effect  in  the  interjjretation 
than  tliose  whicli  are  printed ;  tliey  being  the  immediate  language 
and  terms  selected  by  the  parties  themselves  for  the  expression  of 
their  meaning,  while  the  printed  formula  is  more  general  in  its 
nature,  applying  equally  to  their  case  and  to  that  of  all  other  con- 
tracting parties,  on  similar  subjects  and  occasions.^ 

§  279.  The  rule  under  consideration  is  applied  only  in  suits  be- 
tween the  parties  to  the  instrument ;  as  they  alone  are  to  blame  if 
the  writing  contains  what  was  not  intended,  or  omits  that  which  it 
should  have  contained.  It  cannot  affect  third  persons ;  wlio,  if 
it  Avere  otherwise,  might  be  prejudiced  by  thhigs  recited  in  the 
writings,  contrary  to  the  truth,  tln-ough  the  ignorance,  careless,-Y>-*^ 
or  fraud  of  the  parties  ;  and  who,  therefore,  ought  not  to  be  pre- 
cluded from  proving  the  truth,  however  contradictory  to  tlie 
written  statements  of  others.'^ 

certain  word  was  used  in  a  sense  different  poralion   was   understood   by  a   director, 

from  its  ordinary  acceptation,  it  will  refer  Gould  v.  Norfolk  Lead  Co.  i)  Cush.  338, 

the   question   to   the  jury.      Simpson   v.  345. J 

Margitson,  o.5  Lc<r.  Obs.  172.  ^  Per  Ld.  Ellenborouph,  in  TJobertson 

1  Warren  v.  Wheeler,  8  Met.  97.     Nor  v.  French,  4  East,  loo,  13().     See  Wigrara 

is  parol  evidence  admissible  to  prove  how  on  the  Iiilerpretation  of  Wills,  pp.  1.5,  16, 

a   written    contract    was    understood    by  and  cases  there  cited.     See  also  Boorman 

either  of  the  parties,  in  an  action   upon  v.   Joluiston,    12    Wend.   573 ;    Taylor  v. 

it  at  law,  in   the  absence  of  any  fraud.  Brijjj^s,    2   C.   &  P.  525 ;  ALsager  v.   St. 

Bigelow  V.  Collamore,  5  Cush.  22(5 ;  Harp-  Katiierine's  Dock  Co.  14  M.  &  W.  799, 

er  V.  Ciill)ert,  Id.  417.     (Parol  evidence  is  per  Parke,  B. 

not  admissible  to  show  in  what  sense  the  "  Supra,  §§  23,  171,  204;  1  Poth.  Obi. 

recorded  vote  of  the  directors  of  a  cor-  by  Evans,  P.  4,  c.  2,  art.  3,  n.  [766] ;  2 


CHAP.  XV.]  ADMISSIBILITY   OF   PAROL   EVIDENCE. 


515 


§  280.  It  is  almost  superfluous  to  add,  that  tlie  rule  does  not 
exclude  the  testimony  of  expertn,  to  aid  the  court  in  reading  tlie 
instrument.  If  the  characters  are  difficult  to  be  deciphered,  or 
the  language,  whether  technical,  or  local  and  provincial,  or  alto- 
gether foreign,  is  not  understood  by  the  court,  the  evidence  of 
persons  skilled  in  deciphering  writings,  or  who  understood  the 
language  in  which  the  instrument  is  written,  or  the  technical  or 
local  meaning  of  the  terms  employed,  is  admissible,  to  declare 
what  are  the  characters,  or  to  translate  the  instrument,  or  to  tes- 
tify to  the  proper  meaning  of  the  particular  words. ^  Thus  the 
words  "inhabitant," 2  " level," ^  " thousands," ^  "fur," 5  " freight," « 
and  many  others,  have  been  interpreted,  and  their  peculiar  mean- 
ing, when  used  in  connection  with  the  subject-matter  of  the 
transaction,  has  been  fixed,  by  parol  evidence  of  the  sense  in 
which  they  are  usually  received,  when  employed  in  cases  similar 
to  the  case  at  bar.     And  so  of  the  meaning  of  the  phrase,  "  duly 


Stark.  Evid.  575;  Krider  v.  Lafferty,  1 
Wliart.  303,  314,  per  Kennedy,  J.;  Rey- 
nolds V.  Magness,  2  Iredell,  R.  *26  ;  [Edg- 
erly  v.  Emerson,  3  Foster,  555.  See 
Langdon  v.  Langdon,  4  Gray,  186.] 

1  Wigram  on  the  Interpretation  of 
Wills,  p.  48;  2  Stark.  Evid.  565,  566; 
Birch  V.  Depeyster,  1  Stark.  R.  210,  and 
cases  there  cited ;  infra,  §§  292,  440,  note; 
Sheldon  v.  Benham,  4  Hill,  N.  Y.  Rep. 
123;  [Stone  v.  Hubbard,  7  Cash.  695, 
597.] 

-  The  King  v.  Mashiter,  6  Ad.  &  El. 
153. 

3  Clayton  v.  Gregson,  5  Ad.  &  El.  302; 
4  N.  &  M.  602,  8.  c. 

•1  Smith  1'.  Wilson,  3  B.  &  Ad.  728. 
The  dottrine  of  the  text  was  more  fully 
expounded  by  Shaw,  C.  J.,  in  Brown  v. 
Brown,  8  Met.  576,  577,  as  follows:  "  The 
meaning  of  words,  and  tlio  grannnatical 
construction  of  tiie  English  language,  so 
far  as  they  are  established  by  the  rules 
and  usages  of  the  language,  are,  jirinid 
facie,  matter  of  law,  to  be  construed  and 
passed  ujion  by  tiie  court.  But  language 
may  be  ambiguous,  and  used  in  dillerent 
senses ;  or  general  words,  in  particular 
trades  and  branches  of  business,  —  as 
among  merchants,  for  instance,  —  may  be 
used  in  a  new,  peculiar,  or  technical 
sense ;  and,  therefore,  in  a  few  instances, 
evidence  may  be  received,  from  those 
who  are  conversant  witli  such  branches 
of  business,  and  such  technical  or  i)eculiar 
use  of  language,  to  explain  and  illustrate 
it.     One  of  the  strongest  of  these,  per- 


haps, among  the  recent  cases,  is  the  case 
of  Smith  V.  AVilson,  3  Barn.  &  Adolph. 
728,  where  it  was  held  that,  in  an  action 
on  a  lease  of  an  estate  including  a  rabbit 
warren,  evidence  of  usage  was  admissible, 
to  show  that  the  words,  '  thousand  of  rab- 
bits '  were  understood  to  mean  one  hun- 
dred dozen,  that  is,  twelve  hundred.  But 
the  decision  was  placed  on  the  ground 
that  the  words  '  hundred,'  '  thousand,'  and 
the  like,  were  not  understood,  when  ap- 
plied to  particular  subjects,  to  mean  that 
number  of  units ;  that  the  definition  was 
not  fixed  by  law,  and  therefore  was  open 
to  sucl)  jiroof  of  usage.  Though  it  is  ex- 
ceedingly difficult  to  draw  the  precise  line 
of  distinction,  yet  it  is  manifest  that  such 
evidence  can  be  admitted  only  in  a  few 
cases  like  the  above.  Were  it  otherwise, 
Avritten  instruments,  instead  of  importing 
certainty  and  verity,  as  being  the  sole  re- 
pository of  the  will,  intent,  and  purposes 
of  the  parties,  to  be  construed  by  the  rules 
of  law,  might  be  made  to  speak  a  very 
di(l(?rent  language  by  the  aid  of  parol  evi- 
dence." [See  also  Attorney-General  v. 
Clapham,  31  Eng.  Law  &  Eq.  142]. 

''  Astor  V.  The  Union  Ins.  Co.  7  Cow- 
en,  202. 

''  Peisch  V.  Dickson,  1  Mason,  11.  12. 
[Evidence  of  the  character  of  the  plain- 
tiffs' freighting  business  for  several  years 
previt)us,  is  admissible  to  sliow  that  the 
defeiulant,  in  contracting  to  transport 
"  their  freight,"  did  not  mean  to  include 
liay.    Noyes  v.  Canfield,  1  Williams,  79.] 


31G 


LAW    OF   EVIDENCE. 


[part  II. 


liouored,"  ^  when  applied  to  a  bill  of  exchange  ;  and  of  the  expres- 
sion, "  iu  the  month  of  October,"  ^  when  appUed  to  the  time  when 
a  vessel  was  to  sail ;  and  many  others  of  the  like  kind.  If  the 
question  arises  from  the  ol»scurity  of  the  writing  itself,  it  is'deter- 
mine3'TyTiie'''cour  r  a^^^ 

ac Uial  i 1 1 itch tloii  an d  raeanmg  derlvecl  "tl i c r c from  '^I'C  for  the  jury? 
BuTlNdiere  the  \vw37Tiave~a  known  legal  meaning,  such,  for  ex- 
ample, as  measures  of  quantity  fixed  by  statute,  parol  evidence, 
that  the  parties  intended  to  use  them  in  a  sense  different  from  the 
legal  meaning,  though  it  were  still  the  customary  and  popular 
sense,  is  not  admissible.^ 

§  281.  The  reason  and  policy  of  the  rule  will  be  further  seen,  by 
adverting  to  some  of  the  cases  in  which  parol  evidence  has  been 
rejected.  Thus,  where  a  policy  of  insurance  was  effected  on  goods, 
"  in  ship  or  ships  from  Surinam  to  London,"  parol  evidence  was 
held  in{yimissible  to  show  that  a  particidar  ship  in  the  fleet,  which 
was  lost,  was  verbally  excepted  at  the  time  of  the  contract.^  So, 
where  a  |)olicy  described  the  two  termini  ;of  the  voyage,  parol  evi- 
dence was  hold  inadmissible  to  prove  tliat  the  risk  was  not  to 
commence  until  the  vessel  reached  an,  intermediate  place."     .So, 


1  Lucas  V.  Groning,  7  Taunt.  164. 

2  Chaurand  v.  Angerstien,  Peake's  Cas. 
43.  See  also  I'eisch  v.  Dickson,  1  Mason, 
1-2;  Doe  v.  Benson,  4  B.  &  Aid.  588; 
United  States  v.  Breed,  1  Sunin.  159; 
Taylor  v.  Briggs,  2  C.  &  P.  525.  [And  to 
explain  suoli  an  expression  as  "  Kegular 
turns  of  loading,"  in  an  action  on  a  con- 
tract for  loading  coals  at  Newcastle. 
Leideman  v.  Scliultz,  24  Eng.  Law  &  Eq. 
305.  Theological  works  of  the  period  re- 
ferred to  are  admissible,  to  show  the 
meaning  of  the  words  ''Protestant  dissent- 
ers," in  a  trust  deed.  Drunimond  v.  At- 
torney-General, 2  lb.  15;  iiij'rd,  §  2U5]. 

"^  liemon  v.  Hay  ward,  2  Ad.  &  El.  666; 
Crofts  V.  Marshall,  7  C.  &  T.  597 ;  infra,  § 
300.  But  see  Sheldon  v.  Benham,  4  Hill, 
(N.Y.)  Kep.  123. 

*  Lucas  V.  Groning,  7  Taunt.  164,  167, 
168;  Birch  v.  Depeyster,  1  Stark.  K.  210; 
Paley  on  Agency  (by  Lloyd),  p.  198; 
Hutchinson  r.  Bowker,  5  M.  &  W.  535. 

6  Smith  y.  Wilson,  3  B.  &  Ad.  728,  per 
Lord  Tenterden ;  Hockin  v.  Cooke,  4  T.  R. 
314;  Attorney-Cieneral  v.  The  Cast  Plate 
Glass  Co.  1  Anstr.  39;  Sleght  v.  Rhine- 
lander,  1  Johns.  192 ;  Frith  v.  Barker,  2 
Johns.  335;  Stoever  ;;.  Whitman,  9  Binn. 
417;  Henry  «.  Risk,  1  Dall.  465;  Doe  v. 
Lea,  11  East,  312 ;   Caine  v.  Horsetail,  2 


C.  &  K.  349.  .  Conversations  between  the 
parties  at  'tli'e  time  "of  making  a  contract 
are  competent  evidence,  as  a  part  of  the 
res  (jesta:,  to  show  the  sense  which  they  at- 
taciieU  to  a  particular  terra  used  in  the 
contract.  (Jray  r.  Harper,  1  Story,  R. 
574.  Where  a  sold  note  run  thus  :  —  "18 
pockets  of  liojis,  at  100s.,"  parol  evidence 
was  held  admissible  to  show  tliat  lOO.s. 
meant  the  price  ])er  hundred  weight.  Spi- 
cer  I'.  Cooper,  1  G.  &  D.  52.  [Parol  evi- 
dence is  inadmissible  to  show  that  the 
parties  to  a  deed  understood  "half"  of  a 
rectangular  lot  to  mean  a  less  quantity. 
Butler  V.  Gale,  1  Williams,  739]. 

•^  Weston  V.  Eames,  1  Taunt.  115. 

"  Kaines  v.  Knightly,  Skin.  54 ;  Leslie 
V.  De  la  Torre,  cited  12  East,  358.  [So 
where  a  j)olicy  was  issued  by  a  mutual 
insurance  company,  and  made  in  terms 
subject  to  tbe  conilitions  of  its  by-laws, 
and  the  ])y-laws  provided  that  any  policy 
issued  upon  property  previously  insured 
should  be  void  unless  the  previous  in- 
surance should  be  expressed  in  the  policy 
when  issued,  i)arol  evidence  is  inadmissi- 
ble to  show  that  tbe  fact  of  the  existence 
of  such  prior  insurance,  and  of  the  under- 
standing of  the  insured  that  it  should  re- 
main in  force,  was  made  known  to  the 
defendant  company,  and  assented  to  by 


CHAP.  XV.]  ADMISSIBILITY   OF   PAROL   EVIDENCE. 


317 


where  tlie  instrument  purported  to  be  an  absolute  engagement  to 
pay  at  a  s})ecified  day,  parol  evidence  of  an  oral  agreement  at  the 
same  time  that  the  payment  should  be  prolonged,^  or  depend  upon 
a  contingency ,2  or  be  made  out  of  a  particular  fund,  has  been 
rejected.'^  Where  a  written  agreement  of  partnership  was  unlim- 
ited as  to  tlie  time  of  commencement,  parol  evidence  that  it  was 
at  the  same  time  verbally  agreed  that  the  partnership  sliould  not 
commence  until  a  future  day  was  held  inadmissible.^  So,  where, 
in  assumpsit  for  use  and  occupation,  upon  a  written  memorandum 
of  lease,  at  a  certain  rent,  parol  evidence  was  offered  by  the  plain- 
tiff of  an  agreement  at  the  same  time  to  pay  a  further  sum,  being 
the  ground  rent  of  the  premises,  to  the  ground  landlord,  it  was 
rejected.^     So,  where,  in  a  written  contract  of  sale  of  a  sliip,  the 


tliem,  prior  to  the  execution  and  delivery 
of  the  policy.  Barrett  v.  Union  Mat.  Fire 
Ins.  Co.  7  Cash.  175,  180;  Lee  v.  Howard,  , 
&c.  Co.  8  Gray,  583,  592.  So  wliere  a 
bill  of  lading  e.xpro.s.sly  stipulated  that 
certain  floods  named  tlierein  may  be  car- 
ried on  deck,  parol  evidence  is  inadmissi- 
ble to  show  that  the  sliipper  agreed  and 
assented,  at  tiie  time  of  the  stowage,  that 
an  additional  portion  of  the  goods  sliould 
be  carried  on  deck.  Sayward  v.  Stevens, 
'6  Gray,  y7,  lOli]. 

1  Hoare  v.  Graham,  3  Campb.  57 ; 
Hanson  v.  Stetson,  5  Pick.  506  ;  Spring  v. 
Lovett,  11  Pick.  417. 

-  Kawson  v.  Walker,  1  Stark.  R.  361 ; 
Foster  v.  Jolly,  1  C.  M.  &  R.  703  ;  Hunt  v. 
Adams,  7  Mass.  518 ;  Free  v.  Hawkins,  8 
Taunt.  92 ;  Thompson  v.  Ketchum,  8 
Johns,  18y ;  Woodhridge  r.  Spooner,  3  B. 
&  Aid.  233 ;  Moseley  v.  Hanford,  10  B.  & 
C.  729 ;  Krwin  v.  Saunders,  1  Cowen,  249. 
I  See  Allen  v.  Furbish,  4  Gray,  504,  506, 
in  which  some  of  the  Massachusetts  cases, 
showing  tiiat  parol  evidence  is  inadmissi- 
ble to  annex  a  condition  to  an  absolute 
])romise  in  writing  in  the  form  of  a  prom- 
issory note,  ])romising  to  pay  a  certain 
sura  of  money  on  a  certain  day  named, 
are  reviewed  hy  Dewey,  J.,  and  the  prin- 
ciple re-aSirmed.  Hollenbcck  v.  Shutts,  1 
Gray,  431;  Billings  v.  Billings,  10  Cush. 
178,  182;  Soutiiwick  v.  Ilapgood,  lb.  119, 
121 ;  Ridgway  r.  Bowman,  7  Cush.  268, 
271.  Parol  evidence  is  not  admissible  to 
show  that  a  promissory  note  was  intended 
for  a  receipt.  City  liank  v.  Adams,  45 
Maine,  455]. 

3  Campbell  v.  Hodgson,  1  Gow.  R.  74. 

*  Dix  r.  Otis,  5  Pick.  38. 

5  Preston  r.  Merceau,  2  W.  Bl.  1249. 
A  similar  decision  was  made  in  the  "  Isa- 
bella," 2  Rob.  Adm.  241,  and  in  White  v. 


Wilson,  2  B.  &  P.  116,  where  seamen's 
wages  were  claimed  in  addition  to  the 
sum  named  in  the  shipping  articles.  The 
English  statutes  not  only  require  such 
contracts  to  be  in  writing,  but  declare  that 
the  articles  shall  be  conclusive  upon  the 
parties.  The  statute  of  the  United  States 
is  equally  imperative  as  to  the  writing, 
but  omits  the  latter  provision  as  to  its 
conclusiveness.  But  the  decisions  in  both 
the  cases  just  cited  rest  upon  the  general 
rule  stated  in  the  text,  which  is  a  doctrine 
of  general  jurisprudence,  and  not  upon 
the  mere  positive  enactments  of  the  stat- 
utes. See  2  Rob.  Adm.  243 ;  Bogert  v. 
Cauman,  Anthon's  R.  70.  The  American 
courts  adopt  the  same  doctrine,  both  on 
general  principles,  and  as  agreeable  to  the 
intent  of  the  Act  of  Congress  regidating 
the  merchant  service.  See  Abbott  on 
Shipping  (by  Story),  p.  434,  note;  Bart- 
lett  V.  Wyman,  14  Johns.  260 ;  Johnson  v. 
Dalton,  1  Cowen,  R.  543 ;  [Page  v.  Shef- 
field, 2  Curtis,  C.  C.  377].  The  same 
rule  is  applied  in  regard  to  the  Statute  of 
Frauds.  See  11  j\Inss.  31.  See  further, 
Rich  V.  Jackson,  4  Bro.  Ch.  R.  514 ;  Brig- 
ham  V.  Rogers,  17  Mass.  571;  Flinn  i;^^ 
Calow,  1  M.  &  G.  589.  [So  an  oral  prom- 
ise to  discharge  an  incvnnhrance  not  cre- 
ated by  himself,  made  by  a  grantor  to  a 
grantee,  cannot  be  shown  to  have  been 
made  at  the  same  time  and  tor  tiie  same 
consideration,  as  a  deed  containing  cove- 
nants of  special  warranty  only.  Howe  v^ 
Walker,  4  Gray,  318 ;  Goodrich  v.  Long- 
ley,  lb.  379,  383.  Nor  can  a  limited  war- 
ranty- in  a  deed  be  extended  to  a  general 
warranty  by  proof  of  a  parol  agreement 
to  that  effect,  made  at  the  time  of  the  de- 
livery of  the  deed.  Raymond  v.  Ray- 
mond, 10  Cush.  134,  141;"  Dutton  r.  Ger- 
rish,  9  lb.  89.     Nor  can  it  be  shown  by 


J 


27* 


518 


LAW   OF   EVIDENCE. 


[part  II. 


/ 


ship  was  particularly  described,  it  was  held  that  parol  evidence  of 
a  further  descriptive  representation,  made  prior  to  the  time  of  sale, 
was  not  admissible  to  charge  the  vendor,  without  proof  of  actual 
fraud ;  all  previous  conversation  being  merged  in  the  written  con- 
tract.^ So,  where  a  contract  was  for  the  sale  and  delivery  of 
"  Ware  potatoes,"  of  whicli  there  were  several  kinds  or  qualities ; 
parol  evidence  was  held  not  admissible  to  show  that  the  contract 
Vas  in  fact  for  the  best  of  those  kinds.^  Where  one  signed  a 
prcniiuin  note  in  his  own  name,  i)arol  evidence  was  held  inadmis- 
sible to  show  that  he  signed  it  as  the  agent  of  the  defendant,  on 
whose  property  he  had  caused  insurance  to  be  effected  by  the 
plaintiff,  at  the  defendant's  request,  and  who  was  sued  as  the  prom- 
\  isor  in  the  note,  made  by  his  agont.^  So,  wlicre  an  agent  let  a 
ship  on  hire,  describing  himself  in  the  chartcr-partjf  as  "  owner," 
it  was  held,  in  an  action  upon  the  charter-party,  brought  by  the 
true  owner,  that  parol  evidence  was  not  admissible  to  show  that 
the  plaintiff,  and  not  the  agent,  was  the  real  owner  of  the  ship.* 
Even  the  subsequent  confession  of  the  party,  as  to  the  true  "intent 
and  construction  of  the  title  deed,  under  which  he  claims,  will  be 


parol  that  the  name  of  tlie  grantee  in  a 
deeil  was  inserteil  tlicrein  by  mistake  of 
the  scrivener,  in  place  of  another  person 
who  was  intended  as  the  grantee,  and 
who  afterwards  entered  npon  and  occu- 
pied the  laud.  Crawford  v.  Si)encer,  8 
Cush.  418. 

Where  a  lease,  under  seal,  of  coal  lands, 
said  nothing  as  to  the  quantity  to  he  mined, 
but  establislied  the  ])rice  jier  busiiel  for  all 
that  was  mined,  it  cannot  be  shown  by  par- 
ol that  the  lessee,  at  the  time  of  signing 
the  lease,  promised  to  mine  all  he  could 
dispose  of.  I.,yon  v.  Miller,  24  I'enn. 
State  II.  o'.)2 ;  Kennedy  v.  ICrie,  &c..  Plank 
Uoad  Co.  25  lb.  224 ;  Cluise  v.  Jewett, 
87  Maine,  351.  "  Furring  for  the  whole 
house,"  in  a  written  building  contract, 
cannot  be  shown  by  parol  to  mean  only 
usual  furring,  llerrick  v.  Noble,  1  Wil- 
liams, 1.  Nor  can  it  be  sliown  by  parol 
that  a7i  assignment  of  store  goods  was 
intended  to  include  the  "  store  books." 
Taylor  v.  Sayre,  4  Zabr.  647.] 

^  Pickering  r.  Dowson,  4  Taunt.  779. 
Sec  also  Powell  r.  I-Ahnunds,  12  East,  0 ; 
Pender  v.  Fobes,  1  Dev.  &  Bat.  250; 
Wright  V.  Crookes,  1  Scott,  N.  K.  04. 

2  Smith  V.  Jeffreys,  15  M.  &  W.  5G1. 

8  Stackjiole  >:  Arnold,  11  Mass.  27. 
See  also  Hunt  r.  Adams,  7  Mass.  518; 
Shankland  v.  City  of  Washington,  5  Pe- 


ters, 804  ;  [Myrick  v.  Dame,  9  Cush.  248, 
254.]  But  jiarol  evidence  is  admissible  to 
show  that  one  of  several  promisors  signed 
as  the  surety  of  another.  Carpenter  v. 
King,  9  Met.  511;  McCJee  y.  Prouty,  Id. 
547  ;  [Davis  v.  Barrington,  10  Foster,  517. 
See  Arnold  v.  Cessna,  25  Penn.  State  11. 
34.  (So  as  between  successive  indorsers, 
that  they  were  in  fact  co-sureties.  Wes- 
ton ?'.  (Chamberlain,  7  Cush.  404);  Riley  ??. 
Gerrish,  9  lb.  i04.  And  an  agreement 
lietween  two  sureties  on  a  bond,  tliat  one 
of  them  shall  not,  as  between  themselves, 
be  liable  in  consecpience  of  his  becoming 
such  a  surety,  niay  be  proved  by  parol. 
Barry  v.  Ransom,  2  Kernan,  4G2.  But 
see  Norton  v.  Coons,  2  Selden,  33.]  And 
where  a  sjjccial  agreement  was  made  in 
writing  for  the  sale  of  goods  fiom  A  to  B, 
the  latter  being  in  part  the  agent  of  C, 
whose  name  did  not  apitear  in  the  transac- 
tion ;  it  was  lield,  that  C  might  nuiintain 
an  action  in  his  own  name  against  A  for 
the  breach  of  this  contract,  and  that  parol 
evidence  was  admissible  to  prove,  that  B 
acted  merely  as  the  agent  of  C,  and  for 
his  exclusive  benefit,  llubbert  v.  Borden, 
0  Wharton's  R.  79. 

•*  Humble  V.  Hunter,  12  Ad.  &  El.  310, 
N.  s.  And  see  Lucas  v.  De  la  Cour,  1 
M.  &  S.  249 ;  Robson  v.  Drummond,  2  B. 
&  Ad.  303. 


CHAP.  XV,]  ADMISSIBILITY   OF   PAROL   EVibENCE.  319 

rejected.^  The  books  abound  in  cases  of  the  application  of  this 
rule ;  but  these  are  deemed  sufficient  to  illustrate  its  spirit  and 
meaning,  Avhich  is  the  extent  of  our  present  design. 

§  282.  From  the  examples  given  in  the  two  preceding  sections, 
it  is  thus  apparent  that  the  rule  excludes  only  parol  evidence  of  the 
language  of  the  parties,  contradicting,  varying,  or  adding  to  that 
which  is  contained  in  the  Avritten  instrument ;  and  this  because 
they  have  themselves  committed  to  writing  all  which  they  deemed 
necessary  to  give  full  expression  to  their  meaning,  and  because 
of  the  mischiefs  which  would  result,  if  verbal  testimony  were  in 
such  cases  received.  But  where  the  agreement  in  writing  is  ex- 
pressed in  short  and  incomplete  terms,  parol  evidence  is  admissible 
to  explain  that  which  is  j)er  se  unintelligible,  such  explanation  not 
being  inconsistent  with  the  written  tcrms.^  It  is  also  to  be  kept 
in  mind,  that  though  the  first  question  in  all  cases  of  contract  is 
one  of  interpretation  and  intention,  yet  the  question,  as  we  have 
already  remarked,  is  not  what  the  parties  may  have  secretly  and 
in  fact  intended,  but  what  meaning  did  they  intend  to  convey, 
by  the  words  they  employed  in  the  written  instrument.  To  ascer- 
tain the  meaning  of  these  words,  it  is  obvious  that  parol  evidence 
of  extraneous  facts  and  circumstances  may  in  some  cases  be  ad- 
mitted to  a  very  great  extent,  without  in  anywise  infringing  the 
spirit  of  the  rule  under  consideration.  These  cases,  which  in 
truth  are  not  exceptions  to  the  rule,  but  on  the  contrary  are  out 
of  the  range  of  its  operation,  we  shall. now  proceed  to  consider. 

[*282rt.  It  seems  to  be  well  settled  that  the  rule  excludes  all 
evidence  of  intention,  whether  direct  or  inferential.^  It  seems  too 
that  parol  evidence  is  competent  to  identify,  and  to  show  who 
were,  in  fact,  the  contracting  parties.^  So,  also,  it  is  always  com- 
petent to  prove  custom  or  usage,  in  order  to  ascertain  the  sense 
in  which  the  parties  used  the  terms  of  the  writing ;  as  that  a  con- 
tract for  "  best  palm  oil,"  "  wet,  dirty,  and  inferior  oil,  if  any,  at 

1  Paine  v.  McTntire,  1  Mass.  69,  as  ex-  Where  there  is  an  acknowledgement  of 
plained  in  10  Mass.  401.  See  also  Town-  indebtciliiess,  by  niakinsi;  this  niemoran- 
seiid  r.  Wold,  8  Mass.  14G.  [Where  the  duni :  "I  ()  U  the  sum  of  $1(J0,  which  I 
plaintiff"  declares  npon  and  puts  in  evi-  shall  pay  on  demand  to  you,"  parol  evi- 
dence a  written  contract  as  his  ground  of  deuce  is  admissible  to  show  the  person  to 
action,  he  cannot  put  in  evidence  the  oral  whom  it  is  iiddressed.  Kinney  v.  Flynn, 
declarations  of  the  defendant  as  to  his  sup-  2  K.  I.  319.] 

posed  liability.     Goodell  i'.  Suiith,  9  Cush.  ^  [*  Harrison   v.  Barton,   7  Jur.  n.  s. 

592,  594.]  19  ;  s.  c.  1  Johns.  &  H.  287. 

2  Sweet  V.  Lee,  3  Man.  &  Or.  452;         *  Holding  v.  Elliott,  6  H.  &  N.  117.] 
[Webst«r    v.   Hodgkius,   6    Foster,    128. 


320  LAW   OF    EVIDENCE.  [PART   II. 

a  fair  allowance,"  is  satisfied  if  the  oil  on  arrival  is  only  one  fifth 
"  best  oil."  ^  So,  also,  to  show  a  usage  that  a  broker  who  contracts 
without  disclosing  his  principal  is  himself  personally  responsible.^ 
But  a  custom  or  usage  must  be  reasonable,  in  order  to  be  obliga- 
tory ;  and  if  it  be  such  as  honest  and  fair-minded  men  would  deem 
unfair  and  unjust,  it  cannot  be  regarded  as  valid,  or  of  any  force 
in  any  respect.^] 

§  283.  It  is  in  the  first  place  to  be  observed,  that  the  rule  does 
not  restrict  the  court  to  the  perusal  of  a  single  instrument  or 
paper ;  for,  while  the  controversy  is  between  the  original  parties, 
or  their  representatives,  all  their  contemporaneous  writings,  relating 
to  the  same  subject-matter,  are  admissible  in  evidence.* 

§  284.  It  is  in  the  next  place  to  be  noted,  that  the  rule  is  not 
infringed  by  the  admission  of  parol  evidence,  showing  that  the 
instrument  is  altogether  void,  or  that  it  7ieuer  had  any  legal  exist- 
ence or  binding  force ;  either  by  reason  of  fraud,  or  for  want  of 
due  execution  and  delivery,  or  for  the  illegality  of  the  subject 
matter.  This  qualification  applies  to  all  contracts,  whether  under 
seal  or  not.  The  ivant  of  consideration  may  also  be  proved  to 
show  that  the  agreement  is  not  binding ;  unless  it  is  either  under 
seal,  which  is  conclusive  evidence  of  a  sufficient  consideration ,5 
or  is  a  negotiable  instrument  in  the  hands  of  an  innocent  in- 
dorsee.® Fraud,  practised  by  the  party  seeking  the  remedy,  ujwn 
him  against  whom  it  is  sought,  and  in  that  which  is  the  subject- 
matter  of  the  action  or  claim,  is  universally  held  fatal  to  his  title. 
"  The  covin,"  says  Lord  Coke,  "  doth  suffocate  the  right."  The 
foundation  of  the  claim,  whether  it  be  a  record,  or  a  deed,  or 
a  writing  without  seal,  is  of  no  importance  ;  they  being  alike  void, 
if  obtained  by  fraud.^  Parol  evidence  may  also  be  offered  to 
show  that  the  contract  was  made  for  the  furtherance  of  objects 

1  [*  Lucas  v.  Bristow,  Ellis  Bl.  &  El.  907.  ^  Supra,  §§  19,  22  ;  infra,  §  303. 

2  Dale    i:  Iliuntrey,  7  El.  &  Bl.  2Gt3;  ^  Si,j,ra,^^  189,  190. 

8.  c.  El.  &  Bl.  &  El.  1004.  '  2  Stiirk.  Evid.   3-10 ;  Tait  on  Evid. 

3  Paxton  V.  Courtnay,  2  F.  &  F.  131.]         327,  328  ;  Chitty  on  Contr.  527  « ;  Buckler 
*  Leeds  v.  Lancashire,  2  Campb.  205;     v.  Millerd,  2  Vcntr.  107;  Filmer  v.  Gott, 

Hartley    v.    Wilkinson,   4    Canipb.    127;  4  Bro.  P.  C.  230 ;  Taylor  ;>.  Weld,  5  Mass. 

Stone  V.  Metcalf,  1  Stark.  U.  53;  Bovver-  11(3,  per  Sedgwick,  J.;  Eranchot  v.  Leacli, 

bank  v.  Moiiteiro,  4  Taunt.  846,  jier  Gibbs,  5  Cowen,  508 ;  Dorr  v.  Munsell,  13  Johns. 

J.;  Hunt  v.  Livermore,  5  Pick.  395;  Dav-  431;    Morton   v.   Chandler,  8  Greenl.   9; 

lin  I'.  Hill,  2  Eairf.  434;  Couch  v.  Meeker,  Commonwealth  v.  Bullard,  9  Mass.  270; 

2  Conn.  302;  Lee  u.  Dick,  10  Pet.  482;  Scott  v.  Burton,  2  Ashm.  312;  [Allen  v. 

Bell  I'.  Bruen,  17  Pet.  IGl ;  1  Howard,  (s.  Furbish,  4    Gray,  504,    509;   Prescott  r. 

c.)  R.  169,  183,  s.  c.  Wright,  lb.  461.] 


CHAP.  XV.]  ADMISSIBILITY   OF   PAROL   EVIDENCE.  321 

forbidden  hy  law}  whether  it  be  by  statute,  or  by  an  express  rule 
of  the  common  law,  or  1)y  the  general  policy  of  the  law ;  or  that 
the  writing  was  obtained  by  felony^  or  by  duress;'^  or  that  the 
party  was  incapable  of  binding  himself,  either  by  reason  of  some 
legal  impediment,  such  as  infancy  or  coverture,'*  or  from  actual 
imbecility  or  want  of  reason,^  whether  it  be  by  means  of  per- 
manent idiocy  or  insanity,  or  from  a  temporary  cause  such  as 
drunkenness  ;  "^  or  that  the  instrument  came  into  the  hands  of  the 
plaintiff  without  any  absolute  and  final  delivery}  by  the  obligor 
or  party  charged. 

§  284a.  Nor  does  the  rule  apply,  in  cases  where  the  original 
contract  was  verbal  and  entire,  and  a  part  only  of  it  was  reduced 
to  writing.  Tlius,  where  upon  an  adjustment  of  accounts,  the 
debtor  conveyed  certain  real  estate  to  the  creditor  at  an  assumed 
value,  which  was  greater  than  the  amount  due,  and  took  the 
creditor's  promissory  note  for  the  balance  ;  it  being  verbally  agreed 
that  the  real  estate  should  be  sold,  and  the  proceeds  accounted 
for  by  the  grantee,  and  that  the  deficiency,  if  any,  below  the  esti- 
mated value,  should  be  made  good  by  the  grantor ;  which  agree- 
ment the  grantor  afterwards  acknowledged  in  writing ;  —  it  was 
held,  in  an  action  brought  by  the  latter  to  recover  the  contents 
of  the  note,  that  the  whole  agreement  was  admissible  in  evidence 
on  the  part  of  the  defendant ;  and  that,  upon  the  proof  that  the 
sale  of  the  land  produced  less  than  the  estimated  value,  the  defi- 
ciency should  be  deducted  from  the  amount  due  upon  the  note.^ 

1  Collins  V.  Blantern,  2  Wils.   347;  1  609;  Van  Valkcnburg  i-.  Eouk,  12  Joluis. 

Smith's.  Leading  Cas.  154,  168,  note,  and  338;  2  Inst.  482,  483  ;  5  Dig.  nb.  sup. 

cases  there  cited.      If  tiie  contract  is  by  ^2  Kent,   Comm.  450-453,  and  cases 

deed,  the  illegality  must  be  specially  plead-  there  cited ;  Webster  v.  Woodford,  3  Day, 

ed.     Whelpdale's  case,  5  Co.  IPJ;  Mes-  90;   JMitchell  i:   Kingman,  5   Pick.  431; 

taj-er   v.   Biggs,  4   Tyrw.  471.     But  the  Kice  v.  Pcet,  15  Johns.  503. 

rule  in  the  text  ajiplies  to  such  cases,  as  *"  See  Barrett  v.  Buxton,  2  Aik.  167, 

well  as  to  those  arising  untlor  the  general  where   this   point  is   ably   examined    by 

issue.     See  also  Biggs  ;•.  Lawrence,  3  T.  Prentiss,  J.;  Seymour  v.  Delancy,  3  Cow- 

R.  454 ;  [see  Corbin  v.  Adams,  6  Cush.  96,  en,  518 ;  1  Story's  Eq.  Jur.  §  231,  note  (2) ; 

for  queries  as   to  Biggs    v.   Lawrence ;]  Wiggleswortli  i\  Steers,  1  Hen.  &  Munf. 

Waymell  v.  Reed,  5  T.  R.  600;  Doe  v.  70;  Prentice  v.  Achorn,  2  Paige,  31. 

Ford,  3  Ad.  &  Kl.  649 ;  Catlin  v.  Bell,  4  '  Clark    v.    Gilford,    10    Wend.    310 ; 

Campb.  183;  Commonwealth  r.  Pease,  16  United   States  i".  Lefflcr,   11  I'etcrs,  86; 

Mass.  91;  Norman  v.  Cole,  3  Esp.  2-53;  Jackson  d.  Titus  v.  Myers,  11  Wend.  533, 

Sinclair  v.    Stevenson,    1    C.  &  P.   582;  536;   Couch  i-.  Meeker,  2  Conn.  R.  302. 

Chitty  on  Contr.  519-527.  [Where  an  instrument  was  signed  with 

-  2  B.  &  P.  471,  per  Heath,  J.  an   inidcrstanding  that  it  was  not  to  be 

8  2  Inst.  482,  483  ;  5  Com.  Dig.  Plead-  delivered  exceiit  upon  the  performance  of 

er,  2  W.   18-23;   StouHer  v.  Latshaw,  2  a  certain  condition,  this  may  be  shown  by 

Watts,  165;  Thompson  v.  Lockwood,  15  parol.     Black  r.  Lamb,  1  Beasley,  108.] 

Johns.  256;  2  Stark.  Evid.  274.  "  Lewis  r.  Gray,  1  Mass.  2'.t7  ;  Lapliara 

*  2  Stark.  Evid.  274;  Anon.  12  Mod.  v.  Whipple,  8  Jlet.  59.    [ShetUeld  i:  Page, 


322  LAW   OF   EVIDENCE.  [PART   II. 

[*But  this  is  a  qualification  of  the  g-encral  rule,  which,  although 
correct  iu  strictness  of  principle,  it  will  be  always  difiicult  to  apply, 
in  practice,  without  materially  trenching  upon  the  integrity  of  the 
rule  itself.  But  the  English  courts  do  not  hesitate  to  act  upon 
the  exception,  especially  where  that  seems  the  only  mode  of  reach- 
ing the  justice  of  the  case,  and  of  enabling  one  party  to  escape 
from  the  fraud  or  injustice  of  the  other.  As  where  it  was  agreed 
the  contract  should  not  become  operative  unless  a  third  party 
consented. 1] 

§  285.  Neither  is  this  rule  infringed  by  the  introduction  of 
parol  evidence,  contradicting  or  explaining  the  instrument  in  some 
of  its  recitals  of  facts,  where  such  recitals  do  not,  on  other  prin- 
ciples, estop  the  party  to  deny  them  ;  and  accordingly  in  some 
cases  such  evidence  is  received.^  Thus,  in  a  settlement  case, 
where  the  value  of  an  estate,  upon  which  the  settlement  was 
gained,  was  in  question,  evidence  of  a  greater  smn  paid  than 
was  recited  in  the  deed  was  held  admissible.^  So,  to  show  that 
the  lands,  described  in  the  deed  as  in  one  parish,  were  in  fact 
situated  in  another.*  So,  to  show,  that  at  the  time  of  entering 
into  a  contract  of  scr\ice  in  a  particular  employment,  there  was 
a  further  agreement  to  pay  a  sum  of  money  as  a  premium,  for 
teaching  the  party  the  trade,  whereby  an  apprenticeship  was  in- 
tended ;  and  that  the  whole  was  therefore  void  for  want  of  a 
stamp,  and  so  no  settlement  was  gained.^  So,  to  contradict  the 
recital  of  the  date  of  a  deed ;  as,  for  example,  by  proving  that 
a  charter-party,  dated  February  6th,  conditioned  to  sail  on  or 
before  February  12th,  was  not  executed  till  after  the  latter  day, 
and  that  therefore  the  condition  was  dispensed  with.^  So,  to 
show  that  the  reference,  in  a  codicil  to  a  will  of  1833,  was  a  mis- 
take, that  will  being  supposed  to  be  destroyed  ;  and  that  the  will 
of  1837  was  intended."     And  on  the  other  hand,  where  a  written 

Sprague'a  Decisions,  285 ;  Harris  v.  For-  the  location,  and  constitntinj?  part  of  the 

man,  5  Com.  Ji.  Hoji.  n.  s.  1.]  descriplion,  may  be  referred  to,  to  explain 

1  [*  Wallis  i\  Littell,  11  C.  B.  N.  s.  368;  the  written  location,  but  not  to  vary  or 

8  Jur.  N.  s.  745 ;  see  also  Wake  v.  Ilartop,  modify  it.     Hazen  v.  Boston  &  M.  R.  R.,  2 

10  W.  R.  626 ;  s.  c.  7  Law  T.  n.  s.  96,  Gray,  574,  57'J ;    Boston  &  P.    R.    R.    v. 

in  the  Kxcheciuer  Chamber.]  Midland  R.  R.  1  Gray,  840.] 

■^  2  j'oth.  on  Obi.  by  Evans,  pp.  181,  ^  Rex  r.Laindon,  8  T.  R.  .",79.    [Cream- 

182.     [*  llarri..^   ;;.  Rickett,  4  11.  &  N.  1;  er  r.  Stephenson,  15  Mil.  211.] 

Chapman  v.  Callis,  2  F.  &  F.  161.]  *'  Hall  v.  Cazenove,  4  East,  477.     See 

»  Rex  V.   Scammonden,  3  T.  R.  474.  further,  Tait  on  Evid.  pp.  332,333-336; 

See  also  Doe  r.  Ford,  3  Ad.  &  El.  649.  infra,  §  304. 

*  Rex  r.  AVickhan,  2  Ad.  &  El.  517.  ^  Quincey  v.  Quincey,  11  Jur.  111. 
[The  plan  or  map  of  a  railroad,  filed  with 


CHAP.  XV.]  ADMI^snULTTY    OF    PAROL    EVIDENCE.  323 

guaranty  was  expressed  to  be  "  in  consideration  of  your  having 
discounted  V.'s  note,"  and  it  was  objected  that  it  was  for  a  past 
consideration,  and  therefore  void,  explanatory  paroF  evidence  was 
held  admissible,  to  show  that  the  discount  was  contemporaneous 
with  tlic  guaranty.^  So  where  the  guaranty  was  "  in  considera- 
tion of  your  having  this  day  advanced  to  V.  D.,"  "similar  evidence 
was  held  admissible.^  It  is  also  admissible  to  show  when  a  writ- 
ten promise,  without  date,  Avas  in  fact  made.^  Evidence  may  also 
be  given  of  a  consideration,  not  mentioned  in  a  deed,  provided 
it  be  not  inconsistent  with  the  consideration  expressed  in  it.^ 

§  286.  As  it  is  a  leading  rule,  in  regard  to  written  instruments, 
that  tliey  are  to  bo  interpreted  according  to  their  su])ject-raatter, 
it  is  obvious  that  parol  or  verbal  testimiony  must  be  resorted  to,  in 
order  to  ascertain  the  nature  and  qualities  of  the  subject^  to  which 
the  instrument  refers.  Evidence,  which  is  calculated  to  explain 
the  subject  of  an  instrument,  is  essentially  different  in  its  char- 
acter from  evidence  of  verbal  communications  respecting  it. 
Whatever,  therefore,  indicates  the  nature  of  the  subject,  is  a  just 
medium  of  interpretation  of  the  language  and  meaning  of  the 
parties  in  relation  to  it,  and  is  also  a  just  foundation  for  giving 
the  instrument  an  interpretation,  when  considered  relatively, 
different  from  that  which  it  would  receive  if  considered  in  the 
abstract.  Thus,  where  certain  premises  were  leased,  including 
a  yard,  described  by  metes  and  bounds,  and  the  question  was, 
whether  a  collar  under  the  yard  was  or  was  not  includoil  in  the 
lease ;  verbal  evidence  was  hold  admissible  to  show  that,  at  the 
time  of  the  lease,  the  cellar  was  in  the  occupancy  of  another 
tenant,  and  therefore,  that  it  could  not  have  been  intended  by  the 
parties  that  it  should  pass  by  the  lease.^  So,  where  a  house,  or 
a  mill,  or  a  factory  is  conveyed,  eo  nomine,  and  the  question  is,  as 
to  what  was  part  and  parcel  thereof,  and  so  passed  by  the  deed, 
parol  evidence  to  this  point  is  admitted." 

1  Ex  parte  Y\\'r\\t,  35  Leg.  Obs.  240.  the  person  who  is  tlie  other  contracting 

And  see  llaijxh  v.  Brooks,  10  Ad.  &  El.  party,  or  who  is  the  object  of  tiie  pro- 

80'.);  Butclier '•.  Stuart,  11  M.  &  W.  857.  vision,    whether  it   be   by   will   or   deed. 

-  Goldshedo  v.    Swan,   35    Leg.    Obs.  Phil.  &  Ani.  on  Evid.  7o2,  n.  (1.) 

203;  1  Exch.  R.  154.     Tbis  case  has  been  «  2  Poth.  on  Obi.  by  Evans,  p.   185; 

the  snbject  of  some  animated  discussion  Doe  d.  Freeland  i'.  Burt,  1   T.  K.   701 ; 

in  England.     See  12  Jur.  22,  94,  102.  Elfe  v.  Gadsden,  2  Rich.  378  ;  Brown  v. 

3  Lobl)  V.  Stanley,  5  Ad.  &  El.  574,  x.  s.  Slater,  IG  Conn.  102 ;  Milbourn  v.  Ewart, 

*  Clitthrd  c.  Turrill,  'J  Jur.  G33.  5  T.  K.  381,  385 ;  [infra,  §§  401,  402,  and 

^  la  the  term  "  subject,"  in  this  con-  notes.]    [*Chadwick  r.  Burnley,  12  W.  R. 

ncction,  text-writers  include  every  thing  to  1077.] 

which  tlie  instrument  relates,  as  well  as  '  Ropps  v.  Barker,  4  Pick.  239;  Farrar 


324 


LAW  OF   EVIDENCE. 


[part  II. 


5 


§  287.  Indeed,  there  is  7io  material  difference  of  principle  in  the 
rules  of  interpretation  between  ivilh  and  contracts,  except  what 
naturally  arises  from  the  different  circumstances  of  the  parties. 
The  object,  in  both  cases,  is  the  same,  namely,  to  discover  the 
intention.  And,  to  do  this,  the  court  may,  in  either  case,  put 
themselves  in  the  place  of  the  party,  and  then  see  how  the  terms  of 
the  instrument  affect  the  proj)erty  or  subject-matter. ^     With  this 


^ 


I'.  Stackpole,  6  Grecnl.  154 ;  infra,  §  287, 
cases  in  note.     But  where  the  lanjiuage 
of  the  deed  was  broad  enough  ])huuly  to 
iuchide  a  garden,  together  with  the  iionse, 
it  was  held,  that  the  written  paper  of  con- 
ditions of  sale,  excepting  the  garden,  was 
inadmissible  to  contradict  the  deed.     ]Joe 
r.  Wheeler,  4  P.  &  1).  273 ;  [Goodrich  v. 
Longley,  1  Gray,  615,  G18.] 
/,      i\Doe  V.  Martin,  1  N.  &  M.  524;  4  B. 
/V  &  Ad.  771,  785,  .s.  c.  per  Park,  J.;  Hol- 
/    stein  V.  Jumpson,  4  Esp.  189 ;  Brown  v. 
Thorndyke,  15  Pick.  40U ;  Phil.  &  Am.  on 
Evid.  7l}tV;  2  Phil.  Evid.  277.    [* Prior,  con- 
temporaneous, and  subsequent  enjoyment 
of  a  right  claimed,  is  admissible  to  show 
the  condition  of  property,  in  order  to  place 
the  court  in  the  position  of  the  parties. 
Baird  v.  Fortune,  7  Jur.  n.  s.  926. J     The 
rules  of  interpretation  of  Wills,  in  Vice- 
Ciiaucellor    Wigram's   admirable  treatise 
on  that  subject,  may  be   safely  applied, 
inittiilo  nomine,  to  all  Other  private  instru- 
ments.     They   are    contained   in    seven 
propositions,  as  tlie  result   both  of  prin- 
.^     ciple    and    authority,   and    are   thus   ex- 
.       pressed:  —  "I.  A  testator  is  always  pre- 
sumed  to  use   the   words,    in    which   he 
ex{)resses  himself,  according  to  their  strict 
,.     ami  ])rimary  acceptation,  unless,  from  the 
\     context  of  the  will,  it  appears  that  he  has 
Ki    used  them  in  a  ditlerent  sense ;  in  which 
\    case,  the  sense  in  which  he  tluis  apj)ears 
v^    to  have  used  them  will  be  the  sense  in 
whicli   they   are    to    be    construed.      II. 
Where  there   is   nothing  in  the   context 
Zof  a  will,  from  which  it  is  apparent  that 
a  testator  has  used  the  words,  in  which  he 
has  expressed  liimself,  in  any  other  than 
their  strict  and  primary  sense,  and  where 
his  words  so  interpreted  are  sensible  with 
reference  to  extrinsic  circumstances,  it  is 
an  inflexible  rule  of  construction,  that  the 
words  of  the  will  shall  be  interpreted  in 
their  strict  anil  primary  sense,  and  in  no 
other,  although  they  may  be  capable  of 
some  ])opular  or  secondary  interpretation, 
and    although    the    most    conclusive    evi- 
dence of  iniention  to  use  them  in  such 
popular  or  secondary  sense  be  tendered. 
III.  Where  there  is  nothing  in  the  con- 
V  text  of  a  will,  from  which  it  is  apparent 


^ 


■<^ 


^ 


that  a  testator  has  iiscd  the  words,  in 
whieli  he  has  ex])ressed  himself,  in  any 
other  than  their  strict  and  ])rimary  sense, 
but  his  words  so  interpreted  are  insensible 
with  reference  to  extrinsic  circumstances, 
a  court  of  law  may  look  into  the  extrinsic 
circumstances  of  the  case,  to  see  whether 
the  meaning  of  the  words  be  sensible  in 
any  poi)ular  or  secondary  sense,  of  which, 
with  reference  to  these  circumstances, 
they  are  capable.  IV.  Where  the  char- 
acters, in  which  a  will  is  written,  are  diffi- 
cult to  be  deciphered,  or  the  language  of 
the  will  is  not  understood  by  the  court, 
the  evidence  of  persons  skilled  in  de- 
ciphering writing,  or  who  understand  the 
language  in  which  the  will  is  written,  is 
admissible  to  declare  what  the  characters 
are,  or  to  inform  the  court  of  the  proper 
meaning  of  the  words.  V.  For  the  pur- 
jjose  of  determining  the  object  of  a  testa- 
tor's bounty,  or  the  subject  of  disposition, 
or  the  quantity  of  interest  intended  to  be 
given  by  his  will,  a  court  may  inquire 
into  every  material  fact  relating  to  the 
per:son,  wiio  claims  to  be  interested  under 
the  will,  and  to  the  property,  which  is 
claimed  as  the  subject  of  disposition,  and 
to  the  circumstances  (Jif  the  testator  and 
of  his  family  and  affairs ;  for  the  purpose 
of  enabling  the  court  to  identify  the  per- 
son or  thing  intended  by  the  testator,  or 
to  determine  the  quantity  of  interest  he 
has  given  by  his  will.  The  same  (it  is 
conceived)  is  true  of  every  other  disputed 
point,  respecting  which  it  can  be  shown, 
that  a  knowledge  of  extrinsic  facts  can 
in  any  way  be  made  ancillary  to  the 
right  interpretation  of  a  testator's  words. 
VI.  Where  the  words  of  a  will,  aided  by 
evidence  of  the  material  facts  of  the  case, 
are  insufficient  to  determine  the  testator's 
meaning,  no  evidence  will  be  admissible 
to  prove  what  the  testator  intended,  and 
the  will  (except  in  certain  special  cases  — 
see  I'roposition  VII.)  w^ill  be  void  for  un- 
certainty. VII.  iS'otwilhstanding  the  rule 
of  law,  which  makes  a  will  void  for  un- 
certainty, wjiere  the  words,  aiiled  by  evi- 
dence of  the  material  tacts  of  the  case,  are 
insufficient  to  determine  the  testator's 
meaning,  courts  of  law,  in  certain  special, 

y  / 


-  CHAP.  XY.]  ADMISSIBILITY   OF   PAROL   EVIDENCE. 


325 


view,  evidence  must  be  admi8sil)le,  of  all  the  circumstances  sur- 
rounding the  author  of  the  instrument.^  In  the  simplest  case 
that  can  be  put,  namely,  that  of  an  instrument  appearing  on  the 
face  of  it  to  be  perfectly  intelligible,  inquiry  must  be  made  for 
a  subject-matter  to  satisfy  the  description.  If,  in  the  conveyance 
of  an  estate,  it  is  designated  as'  Blackacre,  parol  evidence  must  be 
admitted  to  show  what  field  is  known  by  that  name.  Upon  the 
same  principle,  where  there  is  a  devise  of  an  estate  purchased 
of  A,  or  of  a  farm  in  the  occupation  of  B,  it  must  be  shown  by 
extrinsic  evidence  what  estate  it  was  that  ■g'as  purchased  of  A,  or 
what  farm  was  in  the  occupation  of  B,  before  it  can  be  known 
what  is  dcvisod.2  So,  if  a  contract  in  writing  is  made,  for  extend- 
ing the  time  of  payment  of  "  certain  notes,"  held  by  one  party 
against  the  other,  parol  evidence  is  admissible  to  show  what  notes 
were  so  held  and  intended.^ 

§  288.  It  is  only  in  this  mode  that  parol  evidence  is  aclmissible 
(as  is  sometimes,  but  not  very  accurately  said),  to  explain  tvrittm 
instruments ;  namely,  by  showing  the  situation  of  the  party  in  all 


cases,  admit  extrinsic  evidence  of  inten- 
tion, to  make  certain  tlie  person  or  tiling 
intended,  where  the  description  in  the 
will  is  insufficient  for  the  purpose.  These 
cases  may  be  thus  defined :  where  the 
object  of  a  testator's  bountj^,  or  the  sub- 
ject of  disposition  (i.e.  person  or  thing 
iniended)  is  described  in  terms  which  are 
;i])plicable  indifferently  to  more  than  one 
person  or  thing,  evidence  is  admissible  to 
prove  which  of  the  jiersons  or  things  so 
described  was  intended  by  the  testator." 
yee  Wigram  on  the  Admission  of  Extrin- 
sic Evidence  in  aid  of  the  Interpretation 
of  Wills,  pp.  11-14.  See  also  Guy  i: 
Siiarp,  1  ISI.  &  K.  602,  per  Ld.  Brougham, 
C.  [poxt,  vol.  2,  §  671.  For  IMr.  IWell's 
rules  for  the  construction  of  devises,  see 
•Jd  I'ow.  on  Dev.  by  Jarman,  pp.  5-11 ; 
Cruise's  Dig.  (Greenleaf's  edit.)  tit.  38, 
ch.  9,  §§  l-lo,  and  notes ;  2d  Cirecnleaf 's 
edit.  (is57)  &c.,  vol.  3,  pp.  172-17'J,  aiu" 
notes.] 

1  The  propriety  of  admitting  such 
dence,  in  order  to  ascertain  the  meaning 
of  doubtful  words  or  expressions  in  a  will, 
is  expressly  conceded  by  jNIarshall,  C.  J., 
in  Smith  v.  Bell,  0  I'eters,  75.  See  also 
Wooster  v.  Butler,  13  Conn.  317;  Bald- 
win V.  Carter,  17  Coim.  'ittl ;  Brown  v. 
Slater,  16  Conn.  I'.fJ ;  Marshall's  Appeal, 
•2  Barr,  388;  Stoncr's  Appeal,  Id.  428; 
The  Great  Northern  l?ail\v.  Co.  c.  Harri- 
son, 16  Jur.  565;  14  Eng.  L.  &  Eq.  R. 


195,  per  Parke,  B.  If  letters  are  offered 
against  a  party,  it  seems  he  may  read  his 
immediate  replies  ;  Eoe  v.  Day,  7  C.  &  P. 
705 ;  and  may  prove  a  previous  conver- 
sation with  the  party  to  show  the  motive 
and  intention  in  writing  them.  Eeay  p. 
Richardson,  2  C.  M.  &  R.  442;  supra, 
§  197. 

-  Sanford  v.  Raikes,  1  Mer.  646,  653, 
per  Sir  W.  Grant;  Doe  d.  Preedy  v. 
Horton,  4  Ad.  &  El.  76,  81.  per  Coleridge, 
J. ;  Doe  V.  Martin,  4  B.  &  Ad.  771,  per 
Parke,  J.  "  Whether  i)arcel,  or  not,  of 
the  thing  demised,  is  always  matter  of 
evidence."  Per  Bidler,  J.,  in  Doe  v.  Burt, 
1  T.  R.  704,  R.  ace.  in  Doe  r.  E.  of  Jer- 
sev,  3  B.  &  C.  870 ;  Doe  v.  Chichester,  4 
Dow's  P.  C.  65 ;  2  Stark.  Evid.  558-561 ; 
[infra,  §  401,  and  notes.  So,  a  deed  of 
land  known  by  the  name  of  the  "  mill 
jpot,"  may  be  explained  by  parol  evi- 
dence of  what  "  the  mill  spot  "  was  com- 
monly reputed,  at  and  before  the  time  of 
the  execution  of  tlie  tleed,  to  include. 
Woods  V.  Sawin,  4  Gray,  322.  So,  an 
agreement  in  writing  to  convey  "  the 
wharf  and  flats  occupied  by  A,  and  owned 
by  B,"  may  be  applied  to  the  subject-mat- 
ter bv  parol.  Genish  c.  Towne,  3  Gray, 
82,  8*8.  So,  "  the  Schermcrhorn  brick- 
vard."  Seaman  v.  Hogeboom,  21  Barb. 
398.  See  also  Russel  v.'  VVerntz,  24  Penn. 
St.  R.  337.] 

3  Bell  V.  Martin,  3  Harrison,  R.  167. 


28 


32G 


LAW    OF   EVIDENCE. 


[part  II. 


his  relatioHS  to  })ersoiis  and  things  around  liim,  or,  as  elsewhere 
expressed,  hy  proof  of  the  surrounding  circumstances.  Thus,  if 
the  language  of  the  instrument  is  applicable  to  several  persons, 
to  several  parcels  of  land,  to  several  species  of  goods,  to  several 
monuments  or  boundaries,  to  severa  writings ;  ^  or  the  terms  be 
vague  and  general,  or  have  divers  meanings,  as  "  household  furni- 
ture," "stock,"  "freight,"  "factory  prices,"  and  tlie  like;^  or  in 
a  will,  the  words  "  child,"  "  children,"  "  grandchildren,"  "  sou," 
"  family,"  or  "  nearest  relations,"  are  employed  ;3  in  all  these  and 
the  like  cases,  parol  evidence  is  admissible  of  ant/  extrmsic  circum- 
stances, tending  to  show  what  person  or  persons,  or  what  things, 
were  intended  by  the  party,  or  to  ascertain  his  meaning  in  any 
other  respect ;  ^  and  this,  without  any  infringement  of  the  rule, 
which,  as  we  have  seen,  only  excludes  parol  evidence  of  other  lan- 
guage, declaring  his  meanuig,  than  that  which  is  contauied  in  the 
instrument  itself. 


1  Miller  v.  Travers,  8  Bing.  244 ;  Sto- 
rer  v.  Freeman,  10  Mass.  435 ;  Waterman 
r.  Johnson,  13  Pick.  261 ;  Hodges  v.  Hors- 
fall,  1  Uus.  &  My.  IIG;  Dillon  ;;.  Harris, 

4  Bligh,  N.  s.  343,  356 ;  Parks  v.  The  Gen. 
Int.  Assur.  Co.  5  Pick.  34 ;  Coit  v.  Stark- 
weather, 8  Conn.  289 ;  Blake  v.  Doherty, 

5  Wheaton,  359 ;  2  Stark.  Evid.  558-561. 
[Storer  v.  Elliot  Fire  Insurance  Co.  45 
.Maine,  175.] 

-  Peiscli  V.  Dickson,  1  Mason,  10-12, 
per  Story,  J. ;  Pratt  v.  Jackson,  1  Bro.  P. 
C.  222;  Kelly  v.  Powlet,  Ambl.  610; 
Bunn  V.  Winthrop,  1  Johns.  Cli.  329;  Le 
Farrant  v.  Spencer,  1  Vos.  97  ;  Colpoys, 
V.  Colpoy.s,  Jacob's  R.  451 ;  Wigram  on 
Wills,  p."  64 ;  Goblet  v.  Beechey,  3  Sim. 
24  ;  Barrett  v.  Allen,  1  Wilcox,  426 ; 
Avery  v.  Stewart,  2  Conn.  69;  Williams 
V.  Gilman,  3  Greenl.  276. 

3  Blackwell  c.  Bull,  1  Keen,  176 ; 
Wyklo's  case,  6  Co.  16;  Brown  r.  Thorn- 
dike,  15  Pick.  400;  Richardson  v.  Wat- 
son, B.  &  Ad.  787.  See  also  Wigram  on 
Wills,  i>-  58 ;  Doe  v.  Joinville,  3  East, 
172;  Green  v.  Howard,  1  Bro.  Ch.  R.  32; 
Leigh  V.  Leigh,  15  Ves.  92 ;  Beachcroft  v. 
Beachcroft,  1  Madd.  R.  430. 

*  Goodings  r.  cBodings,  1  Ves.  231; 
Jeacock  v.  Falkener,  1  Bro.  Ch.  R.  295; 
Fonn<ireau  v.  Poyntz,  Id.  473 ;  Machell  v. 
Winter,  3  Ves.  540,  541 ;  Lane  v.  Ld. 
Stanhope,  6  T.  R.  345;  Doe  c.  Iluth- 
waite,  3  B.  &  Aid.  632 ;  Goodright  v. 
Downshire,  2  B.  &  P.  608,  per  Ld.  Alvan- 
ley ;  Landsowne  r.  Landsowne,  2  Bligh, 
60 ;  Clementson  i\  Gandv,  1  Keen,  309 ; 
King  r.  Badelcy,  3  My.'&  K.  417.  So, 
parol  evidence  is  admissible  to  show  what 


debt  was  referred  to,  in  a  letter  of  collat- 
eral guiti-anty.  Drummond  v.  Prestman, 
12  AVheat.  515.  So,  to  show  that  ad- 
vances, which  had  been  made,  were  iu 
fact  made  upon  the  credit  of  a  particular 
letter  of  guaranty.  Douglass  v.  Reynolds, 
7  Pet.  113.  So,'to  identify  a  note,  which 
is  provided  for  in  an  assignment  of  the 
debtor's  property  for  the  benefit  of  his 
creditors,  but  which  is  misdescribed  in 
tlie  schedule  annexed  to  the  assignment. 
Pierce  v.  Parker,  4  Met.  80.  So,  to  show 
that  the  indorsement  of  a  note  was  made 
merely  for  collateral  security.  Dwight  v. 
Linton,  3  Rob.  (Louis.)  R.  57.  See  also 
Bell  V.  Firemen's  Ins.  Co.  Id.  423,  428, 
where  parol  evidence  was  admitted  of  an 
agreement  to  sell,  prior  to  the  deed  or  act 
of  sale.  So,  to  sliow  what  flats  were  occu- 
pied by  the  rii)arian  proprietor  as  appur- 
tenant'to  his  ujjland  and  wharf,  and  passed 
with  them  by  the  deed.  Treat  r.  Strick- 
land, 10  Sliepl.  234.  [Parol  evidence  may 
be  introduced  to  show  what  persons  were 
meant  by  the  designation  of  "  Horace 
Gray  anil  otliers,"  in  a  written  agreement. 
Herring  r.  Boston  Iron  Co.  1  Gray,  134 ; 
and  toshow  the  circumstances  attending 
the  giving  a  written  certificate  of  comjje- 
tency  to  teach  school.  Hopkins  v.  School 
District,  1  Williams,  281.  So,  also,  where 
a  note  had  on  it  tlie  following  indorse- 
ments :  "  Greenwood  &  Nichols  —  without 
recourse  —  Asa  I'erley,"  the  first  indorsers 
were  allowed  to  prove  tliat  the  words 
"  without  recourse,"  were  written  by  them 
when  they  indorsed  the  note.  Fitchburg 
Bank  v.  Greenwood,  2  Allen,  434.  See 
also  Rey  i'.  Simpson,  22  How.  341.] 


CHAP.  XV.]  ADMISSIBIUTY   OP   PAROL   EVIDENCE.  327 

[*288a.  Previous  conversations  between  the  parties  may  be 
shown,  when  that  becomes  important  to  show  in  what  sense  subse- 
quent writings  passing  between  them  were  understood. ^  So,  when 
a  written  memorandum  is  so  In-icf  that,  without  material  explana- 
tion of  the  terms,  it  would  have  no  sensible  meaning,  parol  proof 
must  be  received  for  that  purpose .^  So,  parol  proof  is  always  ad- 
missible to  show  which  of  two  or  more  persons  or  things  of  the 
same  name  was  intended  by  the  parties,  as  where  cotton  is  sold  to 
arrive  by  ship  "  Peerless  "  from  Bombay,  and  two  ships  of  that 
name  sailed  from  that  port,  at  different  dates. ^ 

[*2886.  A  question  has  sometimes  been  made  in  regard  to  the 
tribunal  which  must  determine  the  correct  reading  of  a  written 
paper.  It  seems  formerly  to  have  been  referred  exclusively  to 
the  court.  But  that  was  owing  mainly  to  the  consideration  that 
the  jury  were  often  wholly  illiterate.  Accordingly  now,  when 
jurors  are  supposed  to  be  competent  to  read  and  write  as  well  as 
the  court,  we  a})prehend  it  has  become,  ultimately,  a  question  for 
them  to  determine,  where  there  is  any  fair  ground  of  doubt,  since 
no  one  can  doubt,  that  it  is  exclusively  a  question  of  fact,  as 
much  as  any  other.'^  But  where  the  reading  of  the  paper  is  undis- 
puted, the  question  of  construction  cannot  be  submitted  to  the 
jury,  except  so  far  as  it  is  liable  to  be  affected  by  extraneous  cir- 
cumstances which  are  in  controversy.  In  such  cases  the  court 
may  fix  the  construction,  in  the  alternative,  and  thus  refer  the 
matter  of  faith  to  the  jury.^] 

§  289.  In  regard  to  wills y  much  greater  latitude  was  formerly 
allowed,  in  the  admission  of  evidence  of  intention,  than  is  war- 
ranted by  the  later  cases.  The  modern  doctrine  on  this  subject, 
is  nearly  or  quite  identical  with  that  which  governs  in  the  inter- 
pretation of  other  instruments  ;  and  is  best  stated  in  the  language 
of  Lord  Abinger's  own  lucid  exposition,  hi  a  case  in  the  Ex- 
chequer.«    "  The  object,"  he  remarked, "  in  all  cases  is  to  discover 

1  [*  Jilacdonald  v.  Lougbottom,  1  Ellis  Hiscocks   against  Jolm   Iliscocks.      The 

&  Ellis,  977.  question  turned  on  tiie  words  of  a  devise 

-  Pharaoh  v.  Lush,  2  F.  &  F.  721.  in  the  will  of  Simon  Iliscocks,  the  grand- 

8  RafHes    v.    Wichelhaus,   2  H.  &  C.  father  of  the  lessor  of  the  plaintitt"  and  of 

906;  s.  c.  33  Law  J.  IGO.  the  defendant.     By  his  will,  Simon  Ilis- 

*  Hills  V.   Loudon   Gas  Co.,  27  L.  J.  cocks,  after  devising  estates  to   his   son 

Exch.  GO.  Simon   for  lite,  and  from    and   after   his 

a  Morser.WeTmouth,28Vt.  R.  824.]  death,  to  his  grandson,  Henry  Iliscocks, 

6  Hiscocks   v'  Iliscocks,   5   M.   &  W.  in  tail  male,  and  making,  as  to  certain 

363,  367.     This  was  an  action  of  eject-  other  estates,  an  exactly  similar  provision 

ment,  brought  on  the  demise  of  Simon  in  favor  of  his  sou  John  for  life;   then. 


328  LAW   OF   EVIDENCE.  [PART  II. 

the  intention  of  the  testator.     The  first  and  most  obvious  mode 
of  doing  this  is  to  read  his  will  as  he  lias  written  it,  and  collect 
his  intention  from  his  words.     But  as  his  words  refer  to  facts  and 
circumstances,  respecting  his  property  and  his  family,  and  others 
whom  he  names  or  describes  in  his  will,  it  is  evident  that  the 
meaning  and  application  of  his  words  cannot  be  ascertained,  with- 
out evidence  of  all  those  facts  and  circumstances.^     To  understand 
the  meaning  of  any  writer,  we  must  first  be  apprised  of  the  persons 
and  circumstances  that  are  the  subjects  of  his  allusions  or  state- 
ments ;  and  if  tliese  are  not  fully  disclosed  in  his  work,  we  must 
look  for  illustration  to  the  history  of  the  times  in  which  he  wrote, 
and  to  the  works  of  contemporaneous  authors.     All  the  facts  and 
circumstances,  therefore,  respecting  persons  or  property,  to  which 
the  will  relates,  are  undoubtedly  legitimate,  and  often  necessary 
evidence,  to  enable  us  to  understand  the  meaning  and  application 
of  his  words.      Again,  the  testator  may  have  habitually  called 
certain  persons  or  things  by  peculiar  names,  by  which  they  were 
not  commonly  known.     If  these  names  should  occur  in  his  will, 
they  conld  only  be  explained  and  construed  by  the  aid  of  evidence, 
to  show  the  sense  in  which  he  used  them,  in  like  manner  as  if 
his  will  were  written  in  cipher,  or  in  a  foreign  language.     The 
habits  of  the  testator,  in  these  particulars,  must  be  receivable  as 
evidence,  to  explain  the  meaning  of  his  will.     But  there  is  another 
mode  of  obtaining  the  intention  of  the  testator,  which  is  by  evi- 
dence of  his  declarations,  of  the  instructions  given  for  his  will, 
and  other  circumstances  of  the  like  nature,  which  are  not  adduced 
for  explaining  the  words  or  meaning  of  the  will,  but  either  to 
supply  some  deliciency,  or  remove  some  obscurity,  or  to  give  some 
effect  to  expressions  that  are  unmeaning  or  ambiguous.      Now, 
there  is  but  one  case  in  which  it  a})i)ears  to  us  that  this  sort  of 
evidence  of  intention  can  properly  l)e  admitted,  and  that  is,  where 
the  moaning  of  the  testator's  words  is  neither  ambio-uous  nor 


after  liis  death,  the  testator  devised  those  scription,   apply  to   either   the   lessor   of 
e.'^tates  to  "  my  grandson,  John  Iliscocks,  the  plaintiff,  who  was  tlie  eldest  son,  but 
eldest   son   of  the  said  John  Hiscocks."  whose  name  was  Simon,  nor  to  the  de- 
It  was  on  this  devise  that  the  question  fendant,  who,  though  his  name  was  John, 
wholly  turned.     Jn  fact,  John  Hiscocks,  was  not  the  eldest  son. 
the  father,  liad  lieen  twice  married;   by  i  See    Crocker    v.  Crocker,   11   Pick 
liis  first  wife  ho  had    Simon,  the  lessor  257 ;  Lamb  r.  Lamb,  Id.  375,  per  Shaw, 
of  the  plaintili;  his  eldest  son;  the  eldest  C.  J.;  Bainbridge  u.  Wade,   20  Law  J. 
son    of   the   second   marriage    was  John  Rep.  (n.  s.)  Q.  B.  7  ;   1  Eng.  L.  &  Eq 
Hiscocks,    the    defendant.      The  devise,  Kep.  236. 
therefore,  did  not,  botii  b}-  name  and  de- 


CHAP.  XV.]  ADMISSIBILITY   OF   PAROL   EVIDENCE. 


329 


obscure,  and  where  the  devise  is,  on  the  face  of  it,  perfect  and 
intelligible,  hut,  from  some  of  the  circumstances  admitted  in  proof, 
an  ambiguity  arises  as  to  which  of  the  two  or'  more  things,  or 
which  of  the  two  or  more  persons  (each  answering  the  words  in 
the  will),  the  testator  intended  to  express.  Thus,  if  a  testator 
devise  his  manor  of  S.  to  A.  B.,  and  has  two  manors  of  North  S. 
and  South  S.,  it  being  clear  he  means  to  devise  one  only,  whereas 
both  are  C(|ually  denoted  by  the  words  he  has  used,  in  that  case 
there  is  what  Lord  Bacon  calls  '  an  equivocation,'  that  is,  the 
"words  equally  apply  to  either  manor ;  and  evidence  of  previous 
intention  may  be  received  to  solve  this  latent  ambiguity,  for  the 
intention  shows  what  he  meant  to  do ;  and  when  you  know  that, 
you  immediately  perceive  that  he  has  done  it,  by  the  general  words 
he  has  used,  which  in  their  ordinary  sense,  may  properly  bear 
that  construction.  It  appears  to  us  that,  in  all  other  cases,  parol 
evidence  of  what  was  the  testator's  intention  ought  to  be  excluded, 
upon  this  plain  ground,  that  his  will  ought  to  be  made  in  writing ; 
and  if  his  intention  cannot  be  made  to  appear  by  the  writing,  ex- 
plained by  circumstances,  there  is  no  will."  ^ 


1  The  learned  chief  baron's  subsequent 
commentary  on  the  opposing  decisions 
seems,  in  a  great  measure,  to  have  ex- 
hausted this  topic.  "  It  must  be  owned, 
however,"  said  he,  "  tliat  there  are  de- 
cided cases  which  are  not  to  be  recon- 
ciled with  this  distinction,  in  a  manner 
altogetlier  satisfactory.  Some  of  them, 
indeed,  exhibit  but  an  apparent  incon- 
sistency. Tluis,  for  example,  in  the  case 
of  Uoe  V.  Huthwaite,  and  Bradsliaw  v. 
Bradshaw,  the  only  thing  decided  was, 
that,  in  a  case  like  the  present,  some 
parol  evidence  was  admissible.  There, 
however,  it  was  not  decided  that  evidence 
of  the  testator's  intention  ought  to  be 
received.  Tlie  decisions,  when  dulj^  con- 
sidered, amount  to  no  more  than  this,  tliat 
where  the  words  of  the  devise,  in  their 
primary  sense,  when  applied  to  the  cir- 
cumstances of  the  family  and  the  pro- 
perty, make  the  devise  insensible,  collat- 
eral facts  may  be  resorted  to,  in  order  to 
show  that,  in  some  secondary  sense  of  the 
words,  —  and  one  in  wiiich  tlie  testator 
meant  to  use  them,  —  the  devise  may  have 
a  full  effect.  Thus  again,  in  Chcynej-'s 
case,  and  in  Counden  v.  Clarke,  '  the 
averment  is  taken,'  in  order  to  show 
which  of  two  persons,  both  equally  de- 
scribed within  the  words  of  the  will,  was 
intended  by  the  testator  to-  take  the  es- 


tate ;  and  the  late  cases  of  Doe  d.  Morgan 
V.  Morgan,  and  Doe  d.  Gord  v.  Needs, 
both  in  tills  court,  are  to  the  same  effect. 
So,  in  the  case  of  Jones  i-.  Newman,  ac- 
cording to  the  view  the  court  took  of  the 
facts,  the  case  may  be  referred  to  the  same 
principles  as  the  former.  The  court  seems 
to  have  thought  the  proof  equivalent  only 
to  proof  of  there  being  two  J.  C.'s  stran- 
gers to  each  other,  and  then  the  decision 
was  right,  it  being  a  mere  case  of  what 
Lord  Bacon  calls  equivocation.  The  cases 
of  Price  v.  Page,  Still  v.  lloste,  and  Care- 
less V.  Careless,  do  not  materially  vary  in 
principle  from  those  last  cited.  They 
diflfer,  indeed,  in  this,  that  the  equivalent 
description  is  not  entirely  accurate;  but 
the}-  agree  in  its  being  (although  inac- 
curate) equally  applicable  to  each  claim- 
ant ;  and  they  all  concur  in  this,  that  the 
inaccurate  part  of  the  description  is  either, 
as  in  Price  v.  Page,  a  mere  blank,  or,  as 
in  the  other  two  cases,  applicable  to  no 
person  at  all.  These,  therefore,  may 
fairh-  be  classed  also  as  cases  of  equivoca- 
tion ;  and  in  that  case,  evidence  of  the 
intention  of  the  testator  seems  to  be  re- 
ceivable. But  there  are  other  cases  not 
so  easily  explained,  and  which  seem  at 
variance  with  the  true  principles  of  evi- 
dence. In  Selwood  r.  Mildmay,  evidence 
of  instructions  for  the  will  was  received. 


28* 


LAW   OF   EVIDENCE. 


[part  II. 


§  290,  From  the  above  case,  and  two  other  leading  modern 
decisions,!  it  has  been  collected,^  (1.)  tliat  where  the  description 
in  the  will,  of  the  person  or  thing  intended,  is  applicable  with  legal 


That  ease  was  doubted  in  Miller  v.  Tra- 
vers  ;  but,  i)erhai)s,  having  been  put  by 
the  Master  of  the  Kolls  as  one  analogous  to 
that  of  the  devise  of  all  a  testator's  tree- 
liold  houses  in  a  given  i)laie,  where  the 
testator  had  only  leasehold  hcjuses,  it 
may,  as  suggesteil  by  Lord  Chief  Justice 
Tindal,  in  Miller  v.  Travers,  be  consid- 
ered as  being  only  a  wrong  application  to 
the  facts  of  a  correct  principle  of  law. 
Again,  in  llaini>shire  v.  I'ierce,  Sir  John 
Strange  aihnitti'd  declarations  of  tlie  in- 
tentions of  the  testatrix  to  be  given  in 
evidence,  to  show  that  by  the  words,  '  the 
four  children  of  my  niece  lianificld,'  she 
meant  the  four  children  by  the  second 
marriage.  It  may  well  be  doubted  whetli- 
er  tliis  was  right,  but  the  decision  on 
the  whole  case  was  undoubtedly  correct ; 
for  the  circumstances  of  the  tamily,  and 
their  ages,  which  no  doubt  were  admissi- 
ble, were  quite  sufficient  to  have  sus- 
tained the  judgment,  without  the  ques- 
tionable evidence.  Anil  it  may  be  further 
observed,  that  the  principle  with  which 
Sir  J.  Strange  .is  said  to  have  commenced 
liis  judgment  is  stated  in  terms  much  too 
hirge,  and  is  so  far  inconsistent  with  later 
autliorities.  Beaumout  v.  Fell,  though 
somewhat  doubtful,  can  be  reconciled 
with  true  principles  upon  this  ground, 
that  there  was  no  such  person  as  Cath- 
erine Earnley,  and  tliat  the  testator  was 
accustomed  to  address  Gertrude  Yardley 
hy  the  name  of  Gatty.  This,  and  other 
circumstances  of  the  like  nature,  which 
were  clearly  admissible,  may  jierhaps  be 
considered  to  warrant  that  decision ;  but 
there  the  evidence  of  the  testator's  dec- 
larations, as  to  his  intention  of  providing 
for  Gertrude  Yardley,  was  also  received ; 
and  the  same  evidence  was  received  at 
Nisi  Prius,  in  Tliomas  v.  Thomas,  and 
approved  on  a  motion  for  a  now  trial,  by 
the  dicta  of  Lord  Kenyon  and  Mr.  Justice 
Lawrence.  15ut  these  cases  seem  to  us  at 
variance  with  the  decision  in  Miller  v. 
Travers,  which  is  a  decision  entitled  to 
great  weight.  If  evidence  of  intention 
could  be  allowed  for  the  ])urpose  of  show- 
ing, that  by  Catherine  Earnley  and  Mary 
Tliomas,  the  resjiective  testators  meant 
Gertrude  Yardley  and  Elinor  Evans,  it 
might  surely  equally  be  adduced  to  prove, 
that  by  the  county  of  Limerick  a  testator 
meant  the  ('()unty  of  CUare.  Yet  this  was 
rejected,  and  we  think  rightly.  We  arc 
prepared  ou  this  point  (the  point  in  judg- 


ment in  the  case  of  Miller  v.  Travers),  to 
adhere  to  the  authority  of  that  case. 
Upon  the  whole,  then,  we  are  of  opinion 
that,  in  this  case,  there  must  be  a  new 
trial.  Where  the  description  is  partly 
true  as  to  both  claimants,  and  no  case  of 
equivocation  arises,  what  is  to  be  done  is 
to  determine  whether  the  description 
means  the  lessor  of  the  plaintiff  or  the 
defendant.  The  description,  in  fiict,  ap- 
plies partially  to  each,  and  it  is  not  easy 
to  see  how  the  difficulty  can  ])e  solved. 
If  it  were  res  integra,  we  should  be  much 
disposed  to  hold  the  devise  void  for  un- 
certainty ;  but  the  cases  of  Doe  v.  Iluth- 
waite,  Hradshaw  v.  Bradshaw,  and  others, 
care  authorities  against  this  conclusion. 
If,  therefore,  by  looking  at  the  surround- 
ing facts  to  be  fouml  by  the  jury,  the 
court  can  clearly  see,  with  the  knowledge 
which  arises  from  those  tacts  alone,  that 
the  testator  meant  either  tlie  lessor  of  the 
plaintiff  or  the  defendant,  it  may  so  de- 
cide, and  direct  the  jury  accordingly  ;  but 
we  think  that,  for  tiiis  purpose,  they  can- 
not receive  declarations  of  the  testator  of 
what  he  inteniled  to  do  in  making  his 
will.  If  the  evidence  does  not  enable  the 
court  to  give  such  a  direction  to  the  jury, 
the  defendant  will  indeed  for  the  present 
succeed  ;  b\it  the  claim  of  the  heir-at-law 
will  pr(}bably  prevail  ultinuitely,  on  the 
ground  that  the  devise  is  void  for  uncer- 
tainty." 

1  Miller  v.  Travers,  8  Bing.  244,  and 
Doe  d.  Gord  v.  Needs,  2  M.  &  W.  129. 
The  nde  on  this  subject  was  thus  stated 
by  Tindal,  C.  J. :  "  In  all  cases  where  a 
difficulty  arises  in  applying  the  words  of 
a  will  or  deed  to  the  subject-matter  of  a 
devise  or  grant,  the  difficulty  or  ambigu- 
ity, which  is  introduced  by  the  admission 
of  extrinsic  evidence,  may  be  rebutted  or 
removed  by  the  production  of  further  evi- 
dence u])on  the  same  subject,  calculated 
to  explain  what  was  the  estate  of  subject- 
matter  really  intended  to  be  granted  or 
devised."  Miller  v.  Travers,  supra,  ex- 
])ressly  recognized  and  aiii)roved  in  At- 
kinson V.  Cummins,  Vt  How.  s.  c.  Bep. 
47U.  The  same  rule  is  applied  to  the 
nu)nunients  in  a  deed,  in  Ciough  v.  Bow- 
man, 15  N.  llamp.  504. 

-  By  Vice-Chancellor  Wigram,  in  his 
Treatise  on  the  Interpretation  of  Wills, 
pi.  184,  188.  Sec  also  Grcsley  on  Evid. 
203. 


CHAP.  XV.]  ADMISSIBILITY   OF   PAROL   EVIDENCE.  331 

certainty  to  each  of  several  subjects,  extrinsic  evidence  is  admissible 
to  prove,  which  of  such  subjects  was  intended  by  the  testator. 
But  (2.)  if  the  description  of  the  person  or  tiling  be  ivliolly  inap- 
plicable to  the  subject  intended,  or  said  to  be  intended  by  it,  evi- 
dence is  not  admissible  to  })rove  whom  or  what  the  testator  really 
intended  to  describe.  His  declarations  of  intention,  whether  made 
before  or  after  the  making  of  the  will,  are  alike  inadmissil)lc.i 
Those  made  at- the  time  of  making  the  will,  when  admitted  at  all, 
are  admitted  under  the  general  rules  of  evidence  applicable  alike 
to  all  written  instruments.^ 

§  291.  But  declarations  of  the  testator,  proving  or  tending  to 
prove  a  material  fact  collateral  to  the  question  of  intention,  where 
such  fact  would  go  in  aid  of  the  interpretation  of  the  testator's 
words,  are,  on  the  principles  already  stated,  admissible.  These 
cases,  however,  will  be  found  to  be  those  only,  in  which  the 
description  in  the  will  is  unambiguous  in  its  application  to  any 
one  of  several  subjects.^  Thus,  where  lands  were  devised  to  John 
Cluer  of  Calcot,  and  there  were  father  and  son  of  that  napie,  parol 
evidence  of  the  testator's  declarations,  that  he  intended  to  leave 
them  to  the  son,  was  held  admissible.*     So,  where  a  legacy  was 

1  Wigram    on    Wills,    pi.    104,    187 ;  subject  of  disposition  (i.  e.  the  person  or 

Brown   i'.  '  Saltonstall,   3   Met.  423,  426;  thing    intended),    is    described    in   terms 

Trustees,   &c.    v.  Peaslee,   15  N.  Hamp.  which  are  apphcable  inditFerently  to  more 

317,  330.  than  one  person  or  thimj."     Id.  pi.  211,  212, 

-  [*  We  have  examined  the  cases  very  213,214.     And  he  insists,  "(1.)    That  the 

extensively  upon  this  question.     Iledfield  judgment  of  a   court,   in   expounding  a 

on  Wills,  §§  39,  40.  41.]  will,  should  be  simply  dMnratory  of  what 

3  Wigram  on  Wills,  pi.  104,  194,  195.  is  in  the  instrument ;  and  (2.),  That  every 
This  learned  writer's  General  Conclusions,  claimant  under  a  will  has  a  right  to  re- 
as  the  result  of  the  whole  matter,  which  quire  that  a  court  of  construction,  in  the 
he  has  so  ably  discussed  in  tlie  treatise  execution  of  its  office,  shall  —  by  means 
just  citeil,  are  "(1.)  That  the  evidence  of  extrinsic  evidence  —  place  itself  in  the 
of  material  facts  is,  in  all  cases,  ad-  situation  of  the  testator,  the  meaning  of 
missible  in  aid  of  the  exjiosition  of  a  whose  language  it  is  called  upon  to  de- 
will.  (2.)  That  the  legitinuite  purposes  clare."  Id.  pi.  5,  96,  215.  Doe  y.  Martin, 
to  which  —  in  succession  —  such  evidence  1  N.  &  M.  524,  per  Parke,  J. ;  4  B.  &  Ad. 
is  applicable,  are  two:  namely,  ^first,  to  771,  s.  c;  Guy  v.  Sharp,  1  M.  &  K.  602, 
determine  whether  the  words  of  tlie  will,  jier  Ld.  Brougham,  C.  See  also  Bo^'s  v. 
with  reterence  to  the  tacts,  admit  of  being  Williams,  2  Kuss.  &  M.  689,  where  parol 
construed  in  tlieir  primary  sense ;  and,  evidence  of  the  testator's  property  and 
secondly,  if  the  facts  of  the  case  exclude  the  situation  was  held  admissible,  to  deter- 
primary  meaning  of  the  words,  to  deter-  mine  whether  a  becpiest  of  stock  was  in- 
mine  whether  the  intention  of  tlie  testator  tended  a^s  a  specitic  or  a  pecuniary  legacy. 
is  certain  in  any  other  sense,  of  which  the  These  rules  apply  witli  equal  force  to  the 
words,  with  reference  to  the  ficts,  are  interpretation  of  every  other  private  in- 
capable.    And    (3.),    That  intention   can-  strument. 

not  be  averred  in  support  of  a  will,  except  *  Jones  v.  Newman,  1  W.  Bl.  60.     See 

in  the   special  cases,   which    are    stated  also  Doe  v.  Benyon,  4  P.  &  D.  193 ;  Doe 

under  the  Seventh  Proposition;"  (see  sh-  v.  Allen,  4  P.  &  D.  220.     But  where  the 

pm,  §  287,  note,)  namely,  cases  "  where  testator  devised  to  his  "  grandson  Hufus," 

the  object  of  a  testator's  t)ounty,  or  the  and  there  were  two  of  that  name,  the  one 


332 


LAW   OF   EVIDENCE. 


[part  II. 


given  to  "  the  four  cliildreii  of  A."  who  had  six  children,  two  by 
a  first,  and  four  by  a  second  marriage,  parol  evidence  of  declara- 
tions by  the  testatrix,  that  she  meant  the  latter  four,  was  held 
admissible.^  So,  where  the  devise  was,  "to  my  granddaughter, 
Mary  Tlionias  of  Llcchloyd  in  Merthyr  parish,"  and  the  testator 
had  a  granddaughter  named  Elinor  Evans  in  that  parisli,  and 
a  great-granddaughter,  Mary  Thomas,  in  the  parish  of  Llaugain  ; 
parol  evidence  of  the  testator's  declarations  at  tlie  time  of  making 
the  will  was  received,  to  sliow  which  was  intended.^  So,  where 
a  legacy  was  given  to  Catherine  Earnlcy,  and  there  was  no  person 
of  that  name ;  but  the  legacy  w^as  claimed  by  Gertrude  Yardley ; 
parol  proof  was  received,  that  the  testator's  voice,  when  the 
scrivener  wrote  tlie  will,  was  very  low,  that  he  usually  called  the 
legatee  Gatty,  and  had  declared  that  he  would  do  well  by  her  in 
his  will ;  and  thereupon  the  legacy  was  awarded  to  her.^  So, 
also,  where  a  devise  was  to  "  the  second  son  of  Charles  Weld,  of 
Lulworth,  Esq.,"  and  there  was  no  person  of  that  name,  but  the 


legitimate  who  lived  in  a  foreign  land,  and 
whom  ho  had  seen  only  once  and  when  a 
child,  anil  tlie  other  i//(i//'iii)(ife,  liviusr 
with  him,  and  whom  he  had  brought  up 
and  educated  ;  it  was  held,  that  the  words 
were  legally  applicable  only  to  the  leyiti- 
mute  gran<lson,  and  that  parol  evidence  to 
the  contrary  was  not  admissible.  Doe  v. 
Taylor,  1  Allen,  425  (N.  Eruns.),  Street, 

J.,  dif:s<'iltif:iltc. 

1  Hampshire  v.  Pierce,  2  Ves.  216. 

2  Thomas  r.  Thomas,  6  T.  K.  671. 

2  Beaumont  v.  Fell,  2  P.  Wms.  141. 
Tlie  propriety  of  receiving  evidence  of 
the  testator's  declarations,  in  eitlier  of  the 
two  last-cited  cases,  was,  as  we  have  just 
seen  {supra,  §  239,  note),  strongly  ques- 
tioned by  Lord  Abinger  (in  lliscocks  v. 
Iliscoeks,  5  Mees.  &  Welsb.  o71),  who 
thought  them  at  variance,  in  tliis  partic- 
ular, with  the  decision  in  Miller  i\  Trav- 
erse, 8  IJing.  241,  which,  he  observed, 
was  a  decision  entitled  to  great  weight. 
But  upon  the  case  of  Beaumont  v.  Fell,  it 
has  been  correctly  remarked,  that  "  the 
evidence,  which  is  confessedly  admissible, 
would,  in  conjunction  with  the  will  itself, 
show  that  there  was  a  devise  to  Catherine 
Earnley,  and  that  no  such  person  existed, 
but  that  tliere  was  a  claimant  named  Ger- 
trude Yardley,  whom  the  testator  usually 
called  Gatty.  In  this  state  of  the  case, 
the  question  would  be,  whether,  upon  the 
principle  of  falsa  (lenionsl ratio  non  nocct, 
the   siu-name  of  Earnley  being  rejected. 


the  cliristian  name,  if  correct,  would  itself 
be  a  sufficient  indication  of  the  devisee ; 
and  if  so,  whether  Gatty  satisfied  tUat 
indication.  Botii  these  questions  leave 
untouched  the  general  question  of  the 
admissibility  of  evidence,  to  show  the  pro- 
cess by  which  Gatty  ])assed  into  Katty, 
and  from  Katty  to  Catherine."  See  Phil. 
&  Am.  on  Evid.  p.  72'J,  note  (2).  It  is 
not  easy,  however,  to  perceive  why.  ex- 
trinsic evidence  of  the  testator's  declared 
intentions  of  beneficence  towards  an  indi- 
vidual is  not  as  a<lmissible,  as  evidence  is, 
that  he  used  to  speak  of  him  or  address 
him  as  his  son,  or  godson,  or  adopted 
child ;  when  the  object  in  both  cases  is  to 
ascertain  which,  of  several  demonstra- 
tions, is  to  be  retained  as  true,  and  which 
rejected  as  false.  Now  the  evidence  of 
such  declarations,  in  Beaumont  v.  Fell, 
went  to  show  that  "  Earnlc}'  "  was  to  be 
rejected  asjiilsa  (hmonstratiu ;  and  the  other 
evidence  went  to  designate  the  individual 
inten.ded  by  the  word  "  Catherine  ;  "  not 
by  adding  words  to  the  will,  but  by  show- 
ing what  the  word  used  meant.  See  infra, 
§  IJdO ;  Wigram  on  the  Interpretation  of 
Wills,  pp.  128,  12'J,  pi.  166.  See  also 
Baylis  r.  The  Attor.-Gen.  2  Atk.  2o'J; 
l^bhott  V.  Massie,  3  Ves.  148;  Doe  d. 
Uxenden  v.  Chichester,  4  Dow's  P.  C.  65, 
98;  Duke  of  Dorset  v.  Ld.  Hawarden,  8 
Curt.  80;  Trustees,  &c.,  v.  Peaslee,  15  N. 
Ilamp.  317 ;  Doe  v.  Huby)ard,  15  Ad.  & 
El.  (n.  s.)  248,  per  Ld.  Campbell. 


CHAP.  XV.]  ADMISSIBILITY   OF   PAROL   EVIDENCE.  333 

testator  had  two  relatives  there,  hearing  the  names  of  Joseph 
■\Vekl,  and  Edward-Joseph  Weld,  it  was  held,  ujjon  the  context 
of  the  will,  and  upon  extrinsic  evidence,  that  the  second  son  of 
Joseph  Weld  was  the  person  intended.  So,  where  a  bequest  was 
to  John  Newbolt,  second  son  of  William-Strangways  Newl)olt, 
Yicar  of  Somerton ;  and  it  appeared  aliunde  that  the  name  of  the 
vicar  was  William-Robert  Newbolt,  that  his  second  son  was  Ilenry- 
llobert,  and  that  his  third  son  was  Jolm-Pryce ;  it  was  held  that 
John-Pryce  was  entitled  to  the  legacy .^  So,  where  the  testatrix 
gave  legacies  to  Mrs.  and  Miss  B.  of  H.,  widow  and  daughter  of 
the  Rev.  Mr.  B. ;  upon  the  legacies  being  claimed  by  Mrs.  and 
Miss  W.,  widow  and  daughter  of  the  late  Rev.  Mr.  W.  of  H.,  it 
was  held,  that  they  were  entitled  ;  it  appearing  aliunde  that  there 
were  no  persons  literally  answering  the  description  in  the  will, 
at  its  date ;  but  that  the  claimants  were  a  daughter  and  grand- 
daughter of  the  late  Rev.  Mr.  B.,  with  all  of  whom  the  testatrix 
had  been  intimately  acquainted,  and  that  she  was  accustomed  to 
call  the  claimants  by  the  maiden  name  of  Mrs.  W.2  The  general 
principle  in  all  these  cases  is  this,  that  if  there  be  a  mistake  in  the 
name  of  the  devisee,  but  a  right  description  of  him,  the  court  may 
act  upon  such  right  description  ;  ^  and  that  if  two  persons  equally 
answer  the  same  name  or  description,  the  court  may  determine, 
from  the  rest  of  the  will  and  the  surrounding  circumstances,  to 
which  of  them  the  will  applies.*  — — «• 

§  292.  It  is  further  to  be  observed,  that  the  rule  under  con- 
sideration, which  forbids  the  admission  of  parol  evidence  to  contra- 
dict or  vary  a  written  contract,  is  not  infringed  by  any  evidence 
of  hioiun  and  established  usage  respecting  the  subject  to  which  the 
contract  relates.  To  such  usage,  as  well  as  to  the  lex  loci,  the 
parties  may  be  supposed  to  refer,  just  as  they  are  presumed  to 
employ  words  in  their  usual  and  ordinary  signification ;  and  ac- 
cordingly the  rule  is  in  both  cases  the  same.  Proof  of  usage  is 
admitted,  either  to  interpret  the  meaning  of  the  language  of  the 
contract,  or  to  ascertain  the  nature  and  extent  of  the  contract, 

1  Newbolt  V.  Pryce,  14  Sim.  354.  whom  survived  him ;  and  lie  devised  an 

2  Lee  V.  Pain,  4  Hare,  251 ;  9  Jur.  24.       estate  to  his  "  dear  wife    Caroline,"   the 
8  On  the  otiier  hand,  if  the  name  is     latter  was  held  entitled  to  take,  though 

right,  but  the  description  is    wrong,  the  she  was  not  the  true  wife.     Doe  v.  Koast, 

name  will  be  regarded  as  the   best  evi-  12  Jur.  99. 

dence  of  the  testator's  intention.     Thus,  *  Blundell  v.  Gladstone,  1  Phil.  Ch.  R. 

where  the  testator  hail  married  two  wives,  279,  288,  per  Patteson,  J. 

Mary  and  Caroline,  successively,  both  of 


334  LAW    OF   EVIDENCE.  [PART   II. 

ill  the  al)Soncc  of  express  stipulations,  and  where  the  meaning  is 
equivocal  and  obscure.^  Thus,  upon  a  contract  for  a  year's  ser- 
vice, as  it  does  not  in  terms  bind  the  party  for  every  day  in  the 
year,  parol  evidence  is  admissible  to  show  a  usage  for  servants  to 
have  certain  holidays  for  themselves.^  So,  where  the  contract  was 
for  performance  as  an  actor  in  a  theatre,  for  three  years,  at  a  cer- 
tain sum  per  u'cek,  \y.\ro\  evidence  was  held  admissible  to  show 
that,  according  to  uniform  theatrical  usage,  the  actor  was  to  be 
paid  only  during  tlic  theatrical  season,  namely,  during  the  time 
while  the  theatre  was  open  for  performance,  in  each  of  those 
years.^  So,  where  a  ship  is  warranted  "  to  depart  with  convoy," 
parol  evidence  is  admissible  to  show  at  what  place  convoy  for 
such  a  voyage  is  usually  taken ;  and  to  that  place  the  parties  are 
presumed  to  refer.^  So,  where  one  of  the  subjects  of  a  charter- 
party  was  "  cotton  in  bales,"  parol  evidence  of  the  mercantile  use 
and  meaning  of  this  term  was  held  admissible.^  So,  where  a 
promissory  note  or  bill  is  payable  with  grace,  parol  evidence  of 
the  laiown  and  established  usage  of  the  bank  at  which  it  is  paya- 
ble is  admissible  to  show  on  what  day  the  grace  expired.^  But 
though  usage  may  be  admissible  to  explain  what  is  doubtful,  it  is 
not  admissible  to  contradict  what  is  i)lain.'^  Thus,  where  a  policy 
was  made  in  the  iisual  form,  upon  the  ship,  her  tackle,  apparel, 
boats,  etc.,  evidence  of  usage,  that  the  underwriters  never  pay  for 
the  loss  of  boats  slung  upon  the  quarter,  outside  of  the  ship,  was 
held  inadmissible.^     So,  also,  in  a  libel  in  rem  upon  a  bill  of  lading, 

1  2  Poth.  on  Obi.  by  Evans,  App.  No.  der,   12^,  G  ms.,"  it  may  be  shown  that 

xvi.  p.  187 ;  2  Suran.  569,  pur  Story,  J. ;  among  dealers  in  madder,  in  snch  a  con- 

11  Sim.  626,  per  Parke,  B. ;  4  P^ast,  135,  tract  12^  means  Vl\  cents  per  pound,  and 

per  Ld.  Ellenborough ;  Cutter  v.  Powell,  expres.<es  tlie  price  of  the  madder.     Dana 

6  T.  R.  i52() ;  Vullance  v.  Devvar,  1  Campb.  v.  Fielder,  2  Kernan,  10 ;  Prown  v.  Brooks, 

50:5;  Noble  v.  Kennoway,  2  Doug.   510;  25  Penn.  St.  11.  210;  Allan  v.  Comstock, 

Bottomley  v.  Porbes,  5  Bing.  n.  c.  121 ;  17  Geo.  55-1 ;  Brown  v.  Byrne,  26  Eng. 

8  Scott,  866;  Ellis  v.  Thompson,  3  M.  &  Law  &  Eq.  247.]     [*And  a  similar  rule 

W.   445;  pout,  vol.  2  [7tli  edit.],   §    251,  was  applied  to  determining  the  jnode  of 

[252,    and   notes.]     Tlie   usage   must  be  measuring  the  amount  of  freight  in  a  bill 

general   in   the  whole   city   or  place,   or  of  lading.     Russian    Steam   Nav.    Co.  v. 

among  all  persons  in  the  trade,  and  not  Silva,  13  C.  B.  n.  s.  610.] 
the  u.sagc  of  a  particular  class  only,  or  the  *^  Renner    v.     Bank    of    Columbia,    9 

course  of  practice  in  a  particular  office  or  Wheat,  581,  where  the  decisions  to  this 

bank,  to  whom  or  which  the  party  is  a  point  are  reviewed  by  Mr.  Justice  Thomp- 

Btranger.     Gabay  v.  Lloyd,  3  B.  &  C.  793.  son. 

-  Hegina  v.  Stoke  upon  Trent,  5  Ad.  &         ^  2  Cr.  &  J.  249,  250,  per  Ld.  Lynd- 

El.  303,  N.  s.  hurst.     [Oelricks  v.  Ford,  23  How.  49.] 

8  Grant  v.  Maddox,  15  M.  &  W.  737.  »  Blackett    v.    The    Royal   Exch.   As- 

*  Lethulier's  case,  2  Salk.  443.  surance  Co.  2  Cr.  &  J.  244.     So,  where 

5  Taylor   u.    Briggs,   2   C.   &   P.  525.  the  written  contract  was  for  "prime  singed 

[Where  part  of  a   memorandum   of  sale  bacon,"  and  evidence  was  offered  to  prove, 

was  as  follows :   "  Bought  150  tons  mad-  that  by  the  usage  of  the  trade  a  certain 


CHAP.  XV.]  ADMISSIBILITY   OF   PAROL   EVIDENCE. 


335 


containing  the  usual  clause,  '•  the  dangers  of  the  seas  only  ex- 
cepted," where  it  was  articulated  in  the  answer,  that  there  was 
an  established  usage,  in  the  trade  in  question,  that  the  ship- 
owners should  see  the  merchandise  properly  secured  and  stowed, 
and  that  this  being  done,  they  sliould  not  be  liable  for  any 
damages  not  occasioned  by  their  own  neglect ;  it  was  held  that 
this  article  was  incompetent,  in  point  of  law,  to  be  admitted  to 
proof.  ^ 


latitude  of  deterioration,  called  average 
taint,  was  allowed  to  subsist,  before  the 
bacon  ceases  to  answer  the  description  of 
prime  bacon;  it  was  held  inadmissible. 
Yates  V.  Pyin,  6  Taunt.  446.  So  also, 
parol  evidence  has  been  held  inadmissible 
to  prove,  that  by  the  words,  "  glass  ware 
in  casks,"  in  the  memorandum  of  ex- 
cepted articles  in  a  fire  policy,  according 
to  the  common  understanding  and  usage 
of  insurers  and  insured,  were  meant  such 
ware  in  open  casks  only.  Bend  v.  The 
Georgia  Ins.  Co.,  Sup.  Court,  N.  York, 
1842.  But  see  Gray  v.  Harper,  1  Story, 
K.  574,  (infra,  page  420  note.)  | Whit- 
more  V.  The  South  Boston  Iron  Co.  2 
Allen,  52.  Where  in  an  action  against 
warehousemen  for  the  non-delivery  of 
property  bailed  to  them,  the  defence  was, 
that  the  property  had  been  fraudulently 
taken  from  their  custody,  without  any 
negligence  on  their  part,  and  the  plaintiff 
did  not  claim  that  the  property  had  in 
fiict  been  delivered  to  any  person,  evi- 
dence of  the  usage  of  other  warehouse- 
men of  taking  receipts  from  persons  to 
whom  property  was  delivered,  is  inadmis- 
sible. Lichtenhein  v.  Boston  &  P.  R.  R. 
Co.  11  Cush.  70,  72.  Hitd  there  been  an 
actual  delivery  to  a  third  person  by  the 
warehouseman,  qmere  how  far  such  evi- 
dence of  general  usage  might  not  be  ad- 
missible to  siiow  negligence.     lb.] 

1  The  schooner  "Keeside,"  2  Sumn. 
567.  In  this  case  the  docti'ine  on  this 
subject  was  thus  briefly  but  energetically 
expounded  and  limited  by  Mr.  Justice  Sto- 
ry :  "I  own  myself,"  said  he,  "  no  friend 
to  the  almost  indiscriminate  habit,  of  late 
years,  of  setting  up  ])articular  usages  or 
customs  in  almost  all  kinds  of  business 
and  trade,  to  control,  vary,  or  annul  the 
general  liabilities  of  parties  under  the  com- 
mon law,  as  well  as  under  the  commercial 
law.  It  has  long  appeared  to  me,  that 
there  is  no  small  danger  in  admitting  such 
loose  and  inconclusive  usages  and  cus- 
toms, often  unknown  to  particular  parties, 
and  always  liable  to  great  misunderstand- 
ings and  misinterpretations  and  abuses, 
to   outweigh  the   well-known    and    well- 


settled  principles  of  law.  "And  I  rejoice 
to  tind,  that,  of  late  years,  the  courts  of 
law,  ])oth  in  England  and  in  America, 
have  been  disposed  to  narrow  the  limits 
of  the  operation  of  such  usages  and  cus- 
toms, and  to  discountenance  any  further 
extension  of  tliem.  The  true  and  appro- 
priate office  of  a  usage  or  custom  is,  to 
interpret  the  otherwise  indeterminate  in- 
tentions of  parties,  and  to  ascertain  the 
nature  and  extent  of  their  contracts, 
arising,  not  from  express  stipulations,  but 
frt)m  mere  implications  and  presumptions, 
and  acts  of  a  doubtful  or  equivocal  cliarac- 
ter.  It  may  also  be  admitted  to  ascertain 
the  true  meaning  of  a  particular  word,  or 
of  particular  words  in  a  given  instrument, 
when  the  word  or  words  have  various 
senses,  some  common,  some  qualified,  and 
some  technical,  according  to  the  subject- 
matter  to  which  they  are  applied.  But  I 
apprehend,  that  it  never  can  be  proper  to 
resort  to  any  usage  or  custom,  to  conti-ol 
or  vary  the  positive  stipulations  in  a  writ- 
ten contract,  and,  afortiori,  not  in  order  to 
contradict  them.  An  express  contract  of 
the  parties  is  always  admissible  to  super- 
sede, or  vary,  or  control  a  usage  or  cus- 
tom ;  for  the  latter  may  always  be  waived 
at  the  will  of  the  parties.  But  a  written 
and  express  contract  cannot  be  controlled, 
or  varied,  or  contradicted  by  a  iisage  or 
custom ;  for  that  would  not  only  be  to  ad- 
mit parol  evidence  to  control,  vary,  or 
contradict  written  contracts,  but  it  would 
be  to  allow  mere  presumptions  and  impli- 
cations, properly  arising  in  the  absence 
of  any  positive  expressions  of  intention,  to 
control,  vary,  or  contradict  the  most  for- 
mal and  deliberate  written  declarations  of 
the  parties."  See  also  Taylor  v.  Briggs, 
2  C.  &  P.  525 ;  Smith  v.  Wilson,  3  B.  & 
Ad.  728 ;  2  Stark.  Evid.  565 ;  Park  on  Ins. 
ch.  2,  pp.  30-60;  post,  vol.  2  [7th  edit.],  § 
251 ;  Hone  i\  Mutual  Safety  Ins.  Co.  1 
Sandf  s.  c.  R.  137.  [Ware  v.  Hayward 
Rubber  Co.  3  Allen,  84;  SynuMuh  r. 
LU)yd,  6  Com.  B.  Rep.  (n.  s.)  6^1 ;  ^\  nm 
V.  Chamberlain,  32  Vt.  318.]  [*Beacon 
Life  &  Fire  Assurance  Co.  v.  Gibb,  1  Moore, 
P.  C.  C.  N.  s.  73;  y  Jur.  n.  s.  185.] 


336  LAW   OF   EVIDENCE.  [PART   II. 

§  293.  The  reasons  ■svliidi  warrant  the  admission  of  evidence 
of  usage  in  any  case,  apply  equally,  Avhether  it  he  required  to  aid 
the  interpretation  of  a  statute,  a  public  chm'ter,  or  a  private  deed ; 
and  whether  the  usage  be  still  existing  or  not,  if  it  were  contem- 
poraneous with  the  instrument.^  And  where  the  language  of 
a  deed  is  doubtful  in  the  description  of  the  land  conveyed,  parol 
evidence  of  the  practical  interpretation,  by  the  acts  of  the  parties, 
is  admissible  to  remove  the  doubt.^  So,  e\adence  of  former  trans- 
actions between  the  same  parties  has  Ijeen  held  admissible  to 
explain  the  meaning  of  terms  in  a  written  contract,  respecting 
subsequent  transactions  of  the  same  character.^ 

§  294.  Upon  the  same  principle,  parol  evidence  of  usage  or 
custom  is  admissible  "  to  annex  incidents,''^  as  it  is  termed,  that  is, 
to  show  what  things  are  customarily  treated  as  incidental  and 
accessorial  to  the  principal  thing,  which  is  the  subject  of  the  con- 
tract, or  to  which  the  instrument  relates.  Thus,  it  may  be  shown 
by  parol  that  a  heriot  is  due  by  custom,  on  the  death  of  a  tenant 
for  life,  though  it  is  not  expressed  in  the  Icase.^  So,  a  lessee  by 
a  deed  may  show  that,  by  the  custom  of  the  country,  he  is  entitled 
to  an  away-going  crop,  though  no  such  right  is  reserved  in  the 
deed.^  So,  in  an  action  for  the  price  of  tobacco  sold,  evidence 
was  held  admissible  to  show  that,  by  tlie  usage  of  tlie  trade,  all 
sales  were  by  sample,  though  not  so  ex{)rcsscd  in  the  bought  and 
sold  notes.*'  Tliis  evidence  is  admitted  on  the  principle,  that  the 
parties  did  not  intend  to  express  in  writing  the  whole  of  the  con- 
ti-act  by  which  they  were  to  be  bound,  but  only  to  make  their 
contract  with  reference  to  the  known  and  established  usages  and 

1  Withnell  v.  Gartliam,  6  T.  R.  388;  note  (1);  1  Sugd.  Vend.  (6th  edit.)  210, 

Stammers  u.  Dixon,  7  East,  20U ;   Wadley  *178;  ("ambridge  r.   Lexington,  17  I'ick. 

r.   Bayliss,   5   Taunt.    752;    2    Inst.  282;  222;   Clioate  ?;.'  Burnliam,' 7   Pick.   274; 

Stradling  v.  Morgan,  Plowd.  205,  ad.  calc;  Allen    v.    Kingsbury,    16    Pick.    239 ;    4 

Ilaydon's  ca.se,  3  Co.  7;  Wells  v.  Porter,  2  Cruise's  Dig.   tit.  32,  eh.  20,  §  23,  note, 

Bing.  N.  c.  720,  per  Tindal,  C.  J.;  Duke  (Greenleaf's  edit.)  [2d  edit.  1857,  vol.  2, 

of  Devonshire  v.  Lodge,  7  B.  &  C.  36,  30,  p.  508,  and  note.] 

40;  Chad  v.  Tilsed,  2'B.  &  B.  403  ;  Attor-  3  Bourne  v.  Gatliff,  11  CI.  &  Fin.  45, 

ney-General  v.  Boston,  0  Jur.  838;  2  Eq.  69.    70.     [See    Bliveii    v.   New    England 

Bep.   107,   s.  c;    Farrar  v.   Stackpole,  6  Screw  Co.  23  How.  420.]     [*Falkner  u. 

Greenl.  154;  Meriam  v.  Ilarsen,  2  Barb.  Earle,  3  B.  &  S.  360;  s.  c.  32  L.  J.  Q.  B. 

Ch.  R.  232.  124.] 

■2  Stone  V.  Clark,  1  Metcalf's  R.  378;         *  White  v.  Sayer,  Palm.  211. 
Livingston  v.  Tenbroeck,  16  Johns.  14,  22,  ^  Wigglesworth  r.   Dallison,   1  Dong. 

23;  Cook  r.  Booth,  Cowp.  419.     This  last  201 ;  1  Smith's  Leading  Cas.  300;  1  Bligii, 

casQ  ha.s  been  repeatedly  disapproved  of,  287  ;   Senior  i\   Arinytage,   Holt's   N.    J*, 

and  may  be  considereil  as  overruled ;  not,  Cas.  197 ;  Ilutton  i\  Warren,  1  M.  &  W. 

however,  in  the  principle  it  asserts,    but  466. 

in  the  application  of  the  princij)le  to  that  ''  Syers  v.  Jonas,  2  Exch.  R.  111. 

case.     See   Phil.   &   Am.   on   Evid.   747, 


CHAP.  XV.]  ADMISSIBILITY   OF   PAROL   EVIDENX'E.  337 

customs  relating  to  the  suLjcct-matter.  But,  in  all  cases  of  this 
sort,  the  rule  for  admitting  the  evidence  of  usage  or  custom  must 
be  taken  witli  tliis  qualification,  that  the  evidence  be  not  repugnant 
to,  or  inconsistent  with,  the  contract ;  for  otherwise  it  would  not  go 
to  interpret  and  ex})lain,  but  to  contradict  that  which  is  written.^ 
This  rule  does  not  add  new  terms  to  the  contract,  which,  as  has 
already  been  shown,^  cannot  be  done  ;  but  it  shows  the  full  extent 
and  meaning  of  those  which  are  contained  in  the  instrument. 

§  295.  But,  in  resorting  to  usage  for  the  meaning  of  i^articular 
words  in  a  contract,  a  distinction  is  to  be  observed  between  local 
and  technical  words,  and  other  words.  In  regard  to  words  which 
are  purely  technical,  or  local,  that  is,  words  which  are  not  of 
universal  use,  but  are  familiarly  known  and  employed,  either  in 
a  particular  district,  or  in  a  particular  science  or  trade,  parol  evi- 
dence is  always  receivable,  to  define  and  explain  their  meaning 
among  those  who  use  them.  And  the  principle  and  practice  are 
the  same  in  regard  to  words  which  have  two  meanings,  the  one 
common  and  universal,  and  the  other  technical,  peculiar,  or  local ; 
parol  evidence  being  admissible  of  facts  tending  to  show  that  the 
words  were  used  in  the  latter  sense,  and  to  ascertain  their  techni- 
cal or  local  meaning.  The  same  principle  is  also  applied  in  regard 
to  words  and  phrases,  used  in  a  peculiar  sense  by  members  of 
a  particular  religious  sect.^     But  beyond  this  the  principle  does 

^  Yeates  v.  Pim,  Holt's  N.  P.  Cas.  95 ;  were  poor  and  piously  disposed,  and  of 

Holding  i".  Pigott,  7  Bing.  465,  474 ;  Black-  the  Protestant  religion,  and  were  able  to 

ett  V.  The  Royal  Exch.  Assur.  Co.  2  C.  &  repeat  the  Lord's  Prayer,  the  Creed,  and 

J.  244 ;  Caine  v.  Horsetail,  2  C.  &  K.  349.  the  Ten  Commandments,  and  Mr.  Edward 

2  Supra,  §  281.  Bowles's  Catechism.     It  was  alleged  that 

^  Tlie  doctrine  on  this  subject  has  re-  Lady  Hewley,  and  all  the  trustees,  whose 

cently  been  very  fully  reviewed,   in  the  religious   opinions   could   be   ascertained, 

case  of  Lady  llewley's   charities.     This  believed   in  tlie  doctrine  of  tlie  Trinity, 

lady,  who  was   a  non-conformist,   in  the  tlie  Atonement,  and  ( )riginal  Sin.     In  the 

year   1704,  conveyed  certain  estates    by  course  of  time,  however,  the  estates  be- 

deeils,  in  trust,  for  the  benefit  of  "  poor  came  Vested  in  trustees,  the  majority  of 

and  godly  preachers  of  Christ's  Holy  Gos-  whom,   though   calling  themselves    Pres- 

pel,"  and  their  widows,  and  "for  the  en-  byterians,   professed    L^nitarian   opinions, 

couraging  and  promoting  of  the  preaching  and  the  funds  had  for  some  years  been 

of  Christ's  Holy   Gosjjel,"  &c.;    with  the  applied,  to  a  considerable  extent,  for  the 

usual  provision  for  preserving  a  perpetual  support  of  a  seminary,  and  for  the  benefit 

succession    of   trustees.     Afterwards,    in  of  poor  preachers  of  tiiat  denomination. 

1707,  by  other  deeds  to  the  same  trustees.  When  the  charity  was  fountled,  the  Stat, 

she  made  provision  for  tlie  erection  and  9  &  10  W.  III.,  c.  32,  against  blasphemy, 

support  of  a  hospital  or  almshouse,  for  cer-  was  in  force,  by  which  tiiose  persons,  wlio 

tain  descriptions  of  poor  persons,  ordain-  by  preaching  denied  the  doctrine  of  the 

ing  rules  for  the  government  of  the  house.  Trinity,  were  liable   to  severe  penalties, 

and  appointing  the  trustees  as  the  visitors.  The  object  of  the  suit  was,  in  etiect,  to 

&c. ;  and  disposing  of  the  surplus  fimds  as  take   this  trust  out  of  the  hands  of  the 

in  the  deeds  of  1704.     The  rules  permit-  Unitarians,   and   to   obtain  a  declaration, 

ted  the   admission   of  none  but  such  as  that  it  should  be  managed  and  applied  by 
VOL.  I.                                                    29 


338 


LAW    OF   EVIDENCE. 


[PAKT   II. 


not  extend.     If,   tlifrefore,  a  contract  is  made  in  ordinary  and 
popular  language,  to  whicli  no  local  or  technical  and  peculiar 


and  for  none  but  Ortliotlox  Dissenters; 
a  Mil  the  controviTsy  turned  eli'u'tiy  on  tlie 
question,  wlietiier  eertiiin  evidence  was 
admissible,  wiiicb  was  offered  to  show 
wliat  sort  of  persons  were  intended,  in  tiie 
deed  of  1701,  by  "  godly  preacliers  of 
Christ's  Holy  dospol,"  &c.  This  evi- 
dence, in  a<ldition  to  the  deed  of  1707, 
consisted  principally  of  the  will  of  Lady 
Ilewley,  the  sermon  of  Dr.  Coulton,  one 
of  the  trustees,  which  was  preached  at 
her  funeral,  and  the  will  of  Sir  -John  Ilew- 
ley, iier  husband;  all  containing  pas- 
sages, showing  that  she  and  the  trustees 
were  Presbyterians,  believing  in  the  Trin- 
ity, the  Atonement,  and  Original  Sin ; 
together  witli  the  depositions  of  persons 
conversant  with  the  history  and  language 
of  the  times  when  the  deeds  were  exe- 
cuted, defining  the  meaning  then  com- 
monly attached  to  the  words  in  question, 
by  jiersons  of  the  donor's  faith ;  and  it  was 
jrrgucd  that  the  persons  whom  she  in- 
tended to  designate  as  beneficiaries  could 
have  been  only  those  of  her  own  faith. 
The  Vice-Chancellor  admitted  this  evi- 
dence, and  decreed  that  ]ireachors  of  the 
Unitarian  doctrine  and  their  widows  were 
not  entitled  to  the  benefit  of  this  charity, 
and  he  onlered  that  the  existing  trustees 
should  be  removed  and  others  apjwintcd, 
and  that  the  charity  should  in  future  be 
applied  accordingly.  This  decree  Lord 
Ch.  Lyndliurst,  assisted  by  Patteson,  J., 
and  Aldcrson,  P.,  afterwards  athrmed. 
An  appeal  being  taken  from  the  judg- 
ment of  Lord  Lyndliurst,  to  the  House 
of  Lords,  the  House,  after  taking  the 
opinions  of  the  common-law  judges,  upon 
certain  questions  jjroposed  to  tltem,  dis- 
missed the  appeal.  'I'he  first  and  princi- 
pal of  these  questions  was,  whether  the 
extrinsic  evidence  a(hluced,  or  what  part 
uf  it,  was  admissible  for  the  purjiose  of 
determining  who  were  entitled  under  the 
terms  "  godly  preachers  of  Christ's  Holy 
Gospel,"  "  godly  persons,"  and  the  other 
descriptions  contained  in  the  deeds  of  1704 
and  1707,  to  the  benefit  of  Lady  llewley's 
Itounty.  The  other  questions,  which  were 
five  in  number,  were  framed  to  ascertain, 
if  such  evidence  should  be  deemed  admis- 
sible, what  descriptions  of  persons  were, 
and  what  wen-  not  the  proper  objects  of 
the  trusts.  Of  the  seven  learned  judges, 
who  answered  these  questions,  six  >fere 
of  opinion,  but  on  various  groimds,  that 
Unitarians  were  excluded.  Maule,  J., 
was  of  opinion,  that  none  of  the  evidence 
offered  was  admissible ;  and  that  the  re- 


ligious opinions  of  the  founder  of  a  char- 
ity, even  if  certainly  known,  could  have 
no  legal  ellect  in  the  interi)retati()n  of  an 
instrument,  in  which  no  reference  is  made 
to  his  own  religious  opinions  or  belief. 
•Erskine,  J .,  was  also  of  opinion  that  none 
of  the  evidence  was  admissible,  for  the 
purpose  for  which  it  was  ottered ;  but 
that  the  sense  of  the  words  in  question 
might  be  ascertained  from  contempora- 
necjus  writings,  and  the  history  of  that 
day  ;  and  that  from  these  sources,  already 
ojjen  to  the  House,  it  was  easy  to  collect, 
that  the  words  were  applicable  to  none 
but  Trinitarian  Dissenters.  Coleridge,  J., 
and  (Jurneij,  B.,  were  of  opinion,  that  the 
evidence  was  admissible,  to  show  the 
opinions  of  those  with  whom  the  founder 
liveil  in  most  confidence,  and  to  what  sect 
she  in  fact  belonged ;  and  that  the  phrase- 
ology of  that  party  might  be  ascertained 
from  other  sources.  Willhuns,  J.,  thought 
that  the  words  employed  were  so  indefi- 
nite and  ambiguous,  that  she  must  be 
presiuned  to  have  used  them  in  a  limited 
sense  ;  and  that  this  sense  might  be  ascer- 
tained from  her  opinions ;  for  which  pur- 
pose the  evidence  was  admissible.  Purke, 
B.,  and  Tiiuhil,  C  ./.,  were  of  opinion, 
that,  though  it  might  well  be  shown,  by 
competent  evidence,  that  the  words  em- 
ployed had  a  peculiar  meaning  at  the  time 
they  were  used,  and  what  was  that  mean- 
ing ;  and  that  the  deeds  were  to  be  read 
by  substituting  the  equivalent  expressions, 
thus  ascertained,  instead  of  those  Avritten 
in  the  deeds ;  yet,  that  evidence  of  her 
own  religious  opinions  was  not  admissible, 
to  limit  or  control  the  meaning  of  the 
words.  Upon  this  occasion,  the  general 
doctrine  of  the  law  was  stated  by  Mr. 
Paron  Parke,  in  the  following  terms :  "  I 
ajvprehend  that  there  are  two  descriptions 
of  evidence,  which  ai-e  clearly  admissible, 
in  every  case,  for  the  purpose  of  enabling 
a  court  to  construe  any  written  instru- 
ment and  to  apply  it  ])ractically.  In  the 
first  place,  there  is  no  doubt,  that  not  only 
wluM'e  the  language  of  the  instrument  is 
such  as  the  court  does  not  unilerstand,  it 
is  conq)etent  to  receive  evidence  of  the 
proper  meaning  of  that  language,  as  when 
it  is  written  in  a  foreign  tongue;  but  it  is 
also  competent  where  technical  words  or 
peculiar  terms,  or,  indeed,  any  expressions 
are  used,  which,  at  the  time  the  instru- 
ment was  written,  had  acquired  any  ap- 
propriate meaning,  either  generally,  or  by 
local  usage,  or  amongst  particular  classes. 
This  description  of  evidence  is  admissible, 


CHAP.  XV.]  ADMISSIBILITY   OF   TAROL   EVIDENCE. 


339 


meaning  is  attached,  parol  evidence,  it  seems,  is  not  admissiljle  to 
show  that,  in  tliat  particular  case,  tlic  words  were  used  in  any 
other  than  their  ordinary  and  popuhir  scnse.^ 


in  order  to  cnablo  tlie  court  to  understand 
tlie  meaninjT  of  tlie  words  contained  in  tlie 
instrument  itself,  by  themselves,  and  witli- 
out  reference  to  the  extrinsic  facts  on 
whicli  tlie  instrument  is  intended  to  op- 
cnite.  For  the  i)uri)ose  of  applyinjjj  the 
instrument  to  the  facts,  <and  determining 
what  passes  by  it,  and  wlio  take  an  in- 
terest under  it,  a  secf)nd  description  of 
evidence  is  admissilile,  namely,  every  via- 
tcn'al  fact,  that  will  enable  the  court  to 
identify  the  jierson  or  thiuLf  uientioned  in 
the  instrument,  and  to  place  the  court, 
whose  province  it  is  to  declare  the  mean- 
ing of  the  words  of  the  instrument,  as 
near  as  may  be,  in  the  situation  of  the 
parties  to  it.  From  the  context  of  the 
instrument,  and  from  these  two  descrip- 
tions of  evidence,  with  such  circumstances 
as  by  law  the  court,  without  evidence, 
may  of  itself  notice,  it  is  its  duty  to  con- 
strue and  apply  the  words  of  that  instru- 
ment; and  no  extrinsic  evidence  of  the 
intention  of  the  party  to  the  deed,  from 
his  declarations,  whether  at  the  time  of 
his  executing  the  instrument,  or  before  or 
after  that  time,  is  admissible  ;  the  duty  of 
the  court  being  to  declare  the  meaning 
of  what  is  written  in  the  instrument,  not 
of  what  was  intended  to  have  been  writ- 
ten." Lord  Ch.  J.  Timhd  expounded  the 
same  doctrine  as  follows  :  "  The  general 
rule  I  take  to  be,  that  where  the  words  of 
any  written  instrument  are  free  from  am- 
biguity in  themselves,  and  where  external 
circumstances  do  not  create  any  doubt  or 
ditRculty,  as  to  the  jiroper  aiiplicalion  of 
those  words  to  claimants  under  the  instru- 
ment, or  the  subject-matter  to  which  tli.e 
instrument  relates,  such  instrument  is  al- 
ways to  be  construed  according  to  the 
strict,  plain,  common  meaning  of  the 
words  themselves  ;  and  that,  in  such  case, 
evidence  chhorA  the  instrument,  for  the 
purpose  of  explaining  it  iu_'conliiig  to  the 
surmised  or  alleged  intention  of  the  par- 
ties to  tlie  instrument,  is  utterly  inadmis- 
sible. If  it  were  otherwise,  no  lawyer 
would  be  safe  in  advising  upon  the  con- 
struction of  a  written  instrument,  nor  any 
party  in  taking  under  it;  tor  the  ablest 


advice  might  be  controlled,  and  the  clear- 
est title  undermined,  if,  at  some  future 
period,  parol  evidence  of  the  jiarticular 
meaning  which  the  party  afKxed  to  his 
words,  or  of  his  secret  intention  in  making 
the  instrument,  or  of  the  ol)jccts  he  meant 
to  take  benefit  imder  it,  might  be  set  up 
to  contradict  or  vary  the  ])lain  language 
of  the  instrument  itself  The  true  inter- 
pretation, however,  of  ever}'  instrument 
ijeing  manifestly  tliat  which  will  make 
the  instrument  speak  the  intention  of  the 
party  at  the  time  it  was  nuide,  it  has  al- 
ways been  considered  as  an  exception,  or 
perhaps,  to  speak  more  precisely,  not  so 
much  an  exception  ti-om,  as  a  corollary  to, 
the  general  rule  above  stated,  that,  where 
any  doubt  arises  upon  the  true  sense  and 
meaning  of  the  words  themselves,  or  any 
difficulty  as  to  their  api)lication  under  the 
sm-rounding  circumstances,  the  sense  and 
meaning  of  the  language  may  be  investi- 
gated and  ascertained  by  evidence  dehors 
the  instrument  itself;  for  both  reason  and 
common  sense  agree,  tliat  by  no  other 
means  can  the  language  of  the  instrument 
be  made  to  speak  the  real  mind  of  the 
party.  Such  investigation  does,  of  neces- 
sity, take  place  in  the  interpretation  of 
instruments  written  in  a  foreign  language; 
in  the  case  of  ancient  instruments,  where, 
by  the  lapse  of  time  and  change  of  man- 
ners, the  words  have  acquired,  in  the 
present  age,  a  different  meaning  from 
that  which  they  bore  when  originally  em- 
ployed ;  in  cases  where  terms  of  art  or 
science  occur;  in  mercantile  contracts, 
which,  in  many  instances,  use  a  peculiar 
language,  enijjloyed  by  those  only  who 
are  conversant  in  trade  and  commerce ; 
and  in  other  instances  in  which  the  words, 
besides  their  general,  common  meaning, 
have  acquired,  by  custom  or  otherwise,  a 
well-known,  ])eculiar,  idiomatic  meaning, 
in  tlie  particular  country  in  which  the 
party  using  them  was  dwelling,  or  in  the 
I)articular  society,  of  which  he  formed  a 
member,  and  in  which  he  passed  his  life. 
In  all  these  cases,  evideni,H3  is  admitted, 
to  expound  the  real  meaning  of  the  lan- 
guage used  in  the  instrument,  in  order  to 


1  2  Stark.  F>vid.  56G  ;  supra,   §§   277,  of  making  the  contract,  was  held  admissi- 

280.     But  see  Oray  r.  Harper,  1  Story's  ble,  to  show  what  sense  they  attached  to 

E.  574,  where  two  booksellers  having  con-  that  term.     See  also  Selden  v.  WiUiams, 

tracted  for  the  side  and  ])urcliase  of  a  cer-  9  Watts,  9 ;  Kemble  v.  Lull,  3  McLean, 

tain   work  at  "  cost,"  i)arol  evitlence   of  272. 
conversations  between  them,  at  the  time 


340 


LAW   OF   EVIDENCE. 


[PAET  ir. 


§  295a.  It  is  thus  api)arent,  as  was  remarked  at  the  outset,  that 
in  all  the  cases  in  which  parol  evidence  has  been  admitted  in  ex- 
position of  that  which  is  written,  the  principle  of  admission  is, 
that  the  court  may  be  placed,  in  regard  to  tlie  surrounding  cir- 
cumstances, as  nearly  as  possible  in  the  situation  of  the  party 
whose  written  language  is  to  l^e  interpreted  ;  tlio  (jucstion  being, 
what  did  the  perst)n,  thus  circumstanced,  mean  by  the  language 
he  has  employed  ? 

§  296.  There  is  another  class  of  cases,  in  which  parol  evidence 
is  allowed  ]>y  courts  of  equity  to  affect  the  ojjeratiun  of  a  writing, 
though  the  writing  on  its  face  is  free  from  ambiguity,  which  is  yet 
considered  as  no  infringement  of  the  general  rule ;  namely,  where 
the  evidence  is  offered  to  rehut  an  equif//.  The  meaning  of  this  is, 
that  where  a  certain  presumption  would,  in  general,  be  deduced 
■from  the  nature  of  an  act,  such  presum|)tion  may  be  repelled  by 
extrinsic  evidence,  showing  the  intention  to  be  otherwise.^     The 


enable  tlie  court,  or  judge,  to  construe  tlie 
instrument,  fiiul  to  carry  such  real  mean- 
ing into  eti'ect.  But,  wliilst  evidence  is 
admissible,  in  these  instances,  for  the  pur- 
pose of  making  the  written  instrument 
si>eak  for  itself,  which,  without  such  evi- 
dence, would  be  either  a  dead  letter,  or 
would  use  a  doubtful  tongue,  or  convey  a 
talse  impression  of  the  meaning  of  tlie 
party,  1  conceive  the  exception  to  be 
strictly  limited  to  cases  of  the  description 
above  given,  and  to  evidence  of  the  na- 
ture above  detailed ;  and  that  in  no  case 
whatever  is  it  permitted  to  ex])lain  the 
language  of  a  deed  by  evidence  of  the  pri- 
vate views,  the  secret  intentions,  or  the 
known  principles  of  the  party  to  the  in- 
strument, whether  religious,  political,  or 
otherwise,  any  more  than  by  express  pa- 
rol declarations  made  by  the  party  him- 
self, which  are  universally  excluded ;  for 
the  admitting  of  such  evidence  would  let 
in  all  the  uncertainty  before  adverted  to ; 
it  would  l)e  evidence  which,  in  most  in- 
stances, could  not  be  met  or  countervailed 
by  any  of  an  opposite  bearing  or  tendency, 
and  would,  in  effect,  cause  the  secret  un- 
declaretl  intention  of  the  party  to  control 
and  predominate  over  the  ojien  intention 
expressed  in  the  deed."  See  Attorney- 
General  V.  Shore,  11  Sim.  K.  5'J2,  61G- 
6-27,  031,  632.  Though,  in  this  celebrated 
case,  the  general  learning  on  this  subject 
has  been  thus  ably  o])ened  and  illustrated  ; 
yet  the  precise  (juestion.  wliether  the  re- 
ligious oi)inions  of  the  tuunder  of  a  char- 
ity can  be  received  as  legal  exponents  of 


his  intention,  in  an  instrument  otherwise 
intelligible  in  its  terms,  and  in  which  no 
reference  is  made  to  his  own  opinions  or 
belief,  can  hardly  be  considered  as  defi- 
nitely settled ;  especially  as  a  majority  of 
the  learned  judges,  in  coming  to  the  con- 
elusion  in  which  they  concurred,  pro- 
ceeded on  grounds  which  rendered  the 
consideration  of  that  point  wholly  un- 
necessary. The  previous  .ijudgmeut  of 
Lord  Ch.  Lyndhurst,  in  the  same  case, 
is  reported  in  7  Sim.  309,  n.,  312-317. 
See  Attorney-General  v.  Pearson  et  al.  3 
Meriv.  353,  40U-411,  415;  and  afterwards 
in  7  Sim.  290,  307,  308,  where  such  evi- 
dence was  held  admissible.  But  how  far 
this  decision  is  to  be  considered  as  shaken 
by  what  fell  from  the  learned  judges,  in 
the  subsequent  case  of  the  Attorney-Gen- 
eral V.  Shore,  above  stated,  remains  to  be 
seen.  The  acts  of  the  fomider  of  such  a 
charity  may  be  shown,  in  aid  of  the  con- 
struction of  the  deed,  where  the  language 
is  doubtful ;  aijd  contemporaneous  treat- 
ises, documents,  and  statutes  may  be  read, 
to  sliow  the  sense  in  which  any  words  or 
phrases  were  connnonly  used  in  that  day, 
and  thereby  to  show  the  sense  in  which  j 
the  tuunder  used  them,  in  the  deed  of  i 
donation ;  but  his  opinions  arc  inadmissi-  i 
ble.  Attorney-General  v.  Drummond,  1  ' 
Drury  &  Warren,  353,  per  Sugden,  C; 
afHrmeil  in  Dom.  Proc.  on  Appeal,  2  Eng. 
Law  &  Eq.  K.  15;  14  Jur.  137.  See 
Attorney-General  i'.  Glasgow  College,  10 
Jurist,  076 

1  2  Poth.  on  Obi.  by  Evans,  App.  No. 


CHAP.  XV.]  ADMISSIBILITY   OF   PAROL   EVIDENCE. 


341 


simplest  instance  of  this  occurs,  when  two  legacies,  of  which  the 
sums  and  the  expressed  motives  exactly  coincide,  are  presumed 
not  to  have  been  intended  as  cnmulative.  In  such  case,  to  rebut 
the  presumption  which  malvcs  one  of  these  legacies  inoperative, 
parol  evidence  will  be  received ;  its  effect  being  not  to  show  that 
the  testator  did  not  mean  what  he  said,  but  on  the  contrary,  to 
prove  that  he  did  mean  what  he  had  expressed. ^  In  like  manner, 
parol  evidence  is  received  to  repel  the  presumption  against  an 
executor's  title  to  the  residue,  from  the  fact  that  a  legacy  has  been 
given  to  him.  So  also  to  repel  the  presumption,  that  a  portion  is 
satisfied  by  a  legacy ;  ^  and  in  some  cases,  that  the  portionment  of 
a  legatee  was  intended  as  an  ademption  of  the  legacy.^ 

§  296a.  Courts  of  equity  also  admit  parol  evidence  to  contradict! 
or  vary  a  waiting,  where  it  {'&  founded  in  a  mistake  of  material  facts, 
and  it  would  be  unconscientious  or  unjust  to  enforce  it  against! 
either  party,  according  to  its  expressed  terms.  Thus,  if  the  plain- 
tiff seeks  a  specific  performance  of  the  agreement,  the  defendant 
may  show  that  such  a  decree  would  be  against  equity  and  justice, 
by  parol  evidence  of  the  circumstances,  even  though  they  contra- 
dict the  writing.  So,  if  the  agreement  speaks,  by  mistake,  a  dif- 
ferent language  from  what  the  parties  intended,  this  may  be 
shown  in  a  bill  to  reform  the  ivriting  and  correct  the  mistake.  In 
short,  wherever  the  active  agency  of  a  court  of  equity  is  invoked, 
specifically  to  enforce  an  agreement,  it  admits  parol  evidence  to 
show  that  the  claim  is  unjust,  although  such  evidence  contradicts 
that  which  is  written.  Whether  courts  of  equity  will  sustain  a 
claim  to  reform  a  writing,  or  to  establish  a  mistake  in  it,  by  parol 
evidence,  and  for  specific  performance  of  it  when  corrected,  in  one 
and  the  same  bill,  is  still  an  open  question.  The  English  authori- 
ties are  against  it;   but  in  America  their  soundness  is  strongly 

xvi.  p.  184 ;  Coote  v.  Boyd,  2  Bro.  C.  R.  as    the    consideration    of   tlie    presumed 

522;  Bull.  N.  P.  297,  2'J8;  Mann  v.  Mann,  revocation  of  a  will,  bj-  a  subsequent  niar- 

1  Johns.  Ch.  2ol.  riage  and  the  birth  of  issue,  does  not  con- 

1  (Jresley  on  Evid.  210;  Hurst  r.  sisf  with  the  plan  of  this  treatise,  the  read- 
Beach,  5  Madd.  II.  3tj0,  per  Sir  J.  Leach,  er  is  referred  to  1  Koper  on  Legacies,  by 
V   C.  White,  pp.  317-353  ;  Gresley  on  Evid.  pp. 

2-  5  Madd.  R.  360 ;  2  Potb-  on  (^bl.  by  209-218 ;  6  Cruise's  Dig.  tit.   38,  ch.   ti, 

Evans,  App.  No.  xvi.  p.  184 ;   Ellison  v.  §§  45-57,  and  notes  by  Greenleaf  [2d  edit. 

Cookson,  1  Ves.  100;  Clinton  v.  Hooper,  (1857),  vol.  o,  p.  104,  and  notes;]   1  Jann. 

Id.  173.     So,  to  rebut  an  implied   trust,  on   Wills,  ch.   7,   and  notes  by  Perkins. 

Liverniore  v.  Aldrich,  5  Cush.  431.  See  mUo  post,  vqI.  2,  §§  684,  685,  [7th  edit. 

«  Kirk   V.   Eddowes,  8  Jur.  530.     As  (1858).] 
the  further  pursuit  of  this  point,  as  well 

29* 


342  LAW    OF   EVIDENCE.  [PART   II. 

questioned.!  So,  also,  if  a  grantee  fraudalenUij  attempts  to  con- 
vert into  an  absolute  sale  that  which  was  originally  meant  to  be 
a  security  for  a  loan,  the  original  design  of  the  conveyance,  though 
contrary  to  the  terms  of  the  writing,  may  be  shown  by  parol.^ 

§  297.  Having  thus  explained  the  nature  of  the  rule  under 
consideration,  and  shown  that  it  only  excludes  evidence  of  the 
language  of  the  party,  and  not  of  the  circumstances  in  which  he 
was  placed,  or  of  collateral  facts,  it  may  be  proper  to  consider  the 
case  of  ambiguities,  both  latent  and  patent.  The  leading  rule  on 
this  subject  is  thus  given  by  Lord  Bacon:  AmUyuitas  verhorum 
latens  verificatione  suppletur ;  nam  quod  ex  facto  oritur  amhiguum, 
verificatione  facti  tollitur.^  Upon  which  he  remarks,  that  "  there 
be  two  sorts  of  ambiguities  of  words :  the  one  is  amlnguitas  patens, 
and  the  other  latens.  Patens  is  that  which  appears  to  be  ambigu- 
ous upon  the  deed  or  instrument;  latens  is  that  which  seemeth 
certain  and  without  ambiguity,  for  any  thing  that  appeareth  upon 
the  deed  or  instrument ;  but  there  is  some  collateral  matter  out 
of  the  deed  that  brecdeth  the  ambiguity.  Ambiguitas  patens  is 
never  holpen  by  averment ;  and  the  reason  is,  because  the  law 
will  not  couple  and  mingle  matter  of  specialty,  which  is  of  the 
higher  account,  with  matter  of  averment,  which  is  of  inferior  ac- 
count in  law ;  for  that  were  to  make  all  deeds  hollow  and  subject 
to  averments,  and  -so,  in  effect,  that  to  pass  without  deed,  which 
the  law  appointeth  shall  not  pass  but  by  deed.  Therefore,  if  a 
man  give  land  to  J.  D.  and  J.  S.  et  hercedihus,  and  do  not  limit 
to  whether  of  their  heirs,  it  shall  not  be  supplied  by  averment  to 
wdiether  of  them  the  intention  was  (that)  the  inheritance  should 
1)0  limited."  "  But  if  it  be  ambiguitas  latens,  then  otherwise  it  is ; 
as  if  I  grant  my  manor  of  S.  to  J.  F.  and  his  heirs,  here  appeareth 
110  amljiguity  at  all.  But  if  the  truth  be  that  I  have  the  manors 
both  of  South  S.  and  North  S.,  this  ambiguity  is  matter  in  fact; 
and  therefore  it  shall  l)e  holpen  by  averment,  whether  of  them  it 
was  that  the  party  intended  should  pass."  ^ 

1  1  Story,  Eq.  Jurisp.  §§  15-J-161 ;  Gres-  supra,  §  290;  Reed  v.  Prop'rs  of  Locks, 
ley  on  Evid.  205-20U.      "  &c.,  8  How.  s.  c.  Kep.  274.     Where  a  bill 

2  Morri.s  r.  Nixon,  17  Tet.  109.  See  was  drawn  expressing:  £200  in  tlie  body 
Jenkins  v.  Eldridge,  3  Story,  R.  181,  284-  in  words,  l)Ut  .£245  in  figures  in  tlie  niar- 
287.  [*See  also  McClane  v.  White,  5  gin,  it  was  held  that  the  words  in  the 
Min.  178;  Tillson  v.  Moukon,  23  111.  (348;  body  must  be  taken  to  be  tlie  true  amount 
People  V.  Irwin,  14  Cal.  428.]  to  be  i)aid  ;  and  that  the  ambiguity  created 

3  Bacon's  Maxims,  Reg.  23,  [25.]  by  the  figures  in  the  margin  was  patent, 
*  See  Bacon's  Law  Tracts,  pp.  99,  100.     and    could    not    be   explained   by  parol. 

And  see  Miller  c.  Travers,  8  Bing.  244;     Samiderson  v.  Piper,  5  Bing.  N.  c.  425; 


*CnAP.  XV.]  ADMISSIBILITY    OF   PAROL   EVIDENCE.  343 

§  298.  But  here  it  is  to  be  observed,  that  words  cannot  be  said 
to  be  ambiguous  because  they  arc  unintelligible  to  a  man  who 
cannot  read  ;  nor  is  a  written  instrument  ambiguous  or  uncertain 
merely  because  an  ignorant  or  uninformed  person  may  be  unable 
to  intci'pret  it.  It  is  ambiguous  only,  token  found  to  be  of  uncertain 
meaning  hy  persons  of  competent  skill  and  information.  Neither  is 
a  judge  at  liberty  to  declare  an  instrument  ambiguous,  because  he 
is  ignorant  of  a  particular  fact,  art,  or  science,  which  was  familiar 
to  the  person  who  used  the  words,  and  a  knowledge  of  which  is 
therefore  necessary  to  a  right  understanding  of  the  words  he  has 
used.  If  this  were  not  so,  then  the  question,  whether  a  will  or 
other  instrument  were  ambiguous  or  uncertain,  might  depend  not 
upon  the  propriety  of  the  language  the  party  has  used,  but  upon 
the  degree  of  knowledge,  general  or  local,  which  a  particular  judge 
might  happen  to  possess  ;  nay,  the  technical  accuracy  and  precision 
of  a  scientific  man  might  occasion  his  intestacy,  or  defeat  his  con- 
tract. Hence  it  follows  that  no  judge  is  at  liberty  to  pronounce 
an  instrument  ambiguous  or  uncertain,  until  he  has  brought  to 
his  aid,  in  its  interpretation,  all  the  lights  afforded  by  the  col- 
lateral facts  and  circumstances,  which,  as  we  have  shown,  may 
be  proved  by  parol.^ 

[*298a.  It  was  decided  in  a  recent  case,^  that  when  evidence 
legitimately  admitted  in  the  course  of  a  trial  raises  a  latent  am- 
biguity, evidence  to  explain  it  is  properly  admissible ;  and,  if 
there  were  in  truth  no  latent  ambiguity,  and  the   evidence   to 

[Lathrop  v.  Blake,  3  Foster,  46.  In  Sar-  previously  paid  by  him  to  the  ilefemlant, 
gent  V.  Adams,  3  Gray,  72,  77,  the  ques-  in  part  performance  of  tlie  agreement, 
lion  arose  how  far  an  agreement  in  The  defendant,  to  show  that  he  had  corn- 
writing  to  let  for  a  term  of  years  "tlie  plied  with  his  obligations  under  the  agree- 
'  Adams  House,'  so  called,  situate  on  ment,  by  tendering  a  jiroper  lease,  otlered 
AVashington  Street,  in  Boston,  and  num-  to  prove  by  parol,  that  the  original  agree- 
bered  371  on  said  Washington  Street,"  ment  was  that  the  lease  should  include 
could  be  explained  by  parol.  The  dc-  only  the  hotel  proper  and  not  the  stores  ; 
fendant  had  lifted  up  an  old  tavern  as  a  and  lie  was  i)ormitted  so  to  do.  The 
hotel,  under  the  name  of  the  "  Adams  o))inion  of  the  court,  by  Shaw,  C.  J., 
House,"  on  Washingtou  Street.  The  en-  [*  places  the  case  among  latent  ambigui- 
trance  to  the  hotel  was  from  said  street,  ties,  upon  the  groimd,  that  the  very  general 
and  was  nundieied  371.  The  rest  of  the  terms  used  in  the  contract  apply  with  suf- 
ground-floor  of  the  building  was  fitted  up  ficient  legal  certainty  to  the  entire  buikl- 
for  stores,  which  were  numbered  from  1  ing.  including  the  stores,  and  to  the  portion 
to  5,  Adams  House,  and  were,  at  the  time  of  it  fitted  up  for  a  public  house;  and  con- 
of  making  the  agreement,  severally  occu-  secpiently  it  was  competent  to  show,  by 
pied  by  diflerent  tenants.  The  defendant  jiarol,  in  which  sense  the  parties  used  the 
tendered,  in  jiursuance  of  the  above  agree-  terms.] 

ment,  a  lease  duly  executed,  of  the  hotel  >  See  Wigram  on  the  Interpretation  of 

known  as  the  Adams  House,  but  not  in-  "Wills,  p.  174,  pi.  200,  201. 
eluding  the  stores,  which  the  plaintiff  re-  -  [*Bruli"  v.  Coneybeare,  9  Jur.  N.  s. 

fused  to  accept,  and  subsequently  brought  78. 
tliis  action  to  recover  a  sum  of  money 


344  LAW   OF   EVIDENCE.  [PART  II. 

explain  were  consequently  inadmissiLle,  still  the  improper  ad- 
mission of  such  evidence  would  not  be  a  ground  for  a  new  tri9,l, 
because  the  writing  would  then  be  for  the  court  to  construe  with- 
out regard  to  the  evidence.  And  if  the  jury,  with  the  aid  of  the 
evidence,  had  put  the  true  construction  upon  it,  the  verdict  should 
stand  ;  ^  and,  if  not,  the  court  might  render  ^ucha  judgment  as  the 
true  construction  re({uircd,  notwithstanding  the  verdict.J 

§  299.  A  dlatlnctlon  is  further  to  be  observed,  between  the 
ambiguity  of  language  and  its  inaccuracy.  "  Language,"  Yice- 
Chancellor  Wigrani  remarks,  "  may  be  inaccurate  without  being 
ambiguous,  and  it  may  be  ambiguous  although  perfectly  accurate. 
If,  for  instance,  a  testator,  having  one  leasehold  house  in  a  given 
place,  and  no  other  house,  were  to  devise  his  freehold  house  there 
to  A.  B.,  the  description,  though  inaccurate,  would  occasion  no 
amljiguity.  If,  however,  a  testator  were  to  devise  an  estate  to 
John  Baker,  of  Dale,  the  son  of  Thomas,  and  there  were  two 
persons  to  whom  the  entire  description  accurately  applied,  this 
description,  though  accurate,  woidd  be  ambiguous.  It  is  obvious, 
therefore,  that  the  whole  of  that  class  of  cases  in  which  an  accurate 
description  is  found  to  be  sufficient  merely  by  the  rejection  of 
words  of  surplusage  are  cases  in  which  no  ambiguity  really  exists. 
The  meaning  is  certain,  notwithstanding  the  inaccuracy  of  the 
testator's  language.  A  judge,  in  such  cases,  may  hesitate  long 
before  he  conies  to  a  conclusion ;  but  if  he  is  able  to  come  to  a 
conclusion  at  last,  with  no  other  assistance  than  the  light  derived 
from  a  knowledge  of  those  circumstances,  to  which  the  words  of 
the  will  expressly  or  tacitly  refer,  he  does  in  effect  declare  that 
the  words  have  legal  certainty  —  a  declaration  which,  of  course, 
excludes  .the  existence  of  any  ambiguity.  The  language  may  be 
inaccurate  ;  but  if  the  court  can  determine  the  meaning  of  this  in- 
accurate language,  without  any  other  guide  than  a  knowledge  of 
the  simple  facts,  upon  which  —  from  the  very  nature  of  language 
in  general  —  its  meaning  depends,  the  language,  though  inaccurate 
cannot  be  amljiguous.  The  circumstance,  that  the  inaccuracy 
is  ajjparent  on  the  face  of  the  instrument,  cannot,  in  principle, 
alter  the  case."  ^  Thus,  in  the  will  of  Nollckens,  the  sculptor,  it 
w^as  provided  that,  upon  his  decease,  "  all  the  marble  in  the  yard, 
the  tools  in  the  shop,  bankers,  mbd^  tools  for  carving,"  &c.,  should 

1  [*  Morse   i;.   Weymouth,   28  Vt.  R.  -  "Wisjram    on    the    Interpretation   of 

824.]  WiUs,  pp.  175,  17G,  pi.  203,  204. 


\ 


CHAP.  XV.]  ADMISSIBILITY   OF   PAROL   EVIDENCE.  345 

be  the  property  of  Alex.  Goblet.  The  controversy  was  upon  tlio 
word  "??«(>(?;"  which  was  a  case  oi  patent  inaccuracy;  but  tlio 
coui't,  with  no  guide  to  the  testator's  intention  but  his  words,  and 
the  knowledge  common  to  every  working  sculptor,  decided  that 
the  word  in  question  sufficiently  described  the  testator's  models; 
thus  negativing  the  existence  of  any  ambiguity  whatever.^ 

§  300.  The  patent  ambiguity,  therefore,  of  which  Lord  Bacon 
speaks,  must  be  understood  to  be  that  which  remains  uncertain 
to  the  court,  after  all  the  evidence  of  surrounding  circumstances 
and  collateral  facts,  which  is  admissible  under  the  rules  already 
Slated,  is  exliausted.  His  illustrations  of  this  part  of  the  rule  are 
not  cases  of  misdescription,  cither  of  the  person  or  of  the  thing  to 
whicli  the  instrument  relates ;  but  are  cases  in  which  the  persons 
and  things  being  sufficiently  described,  the  intention  of  the  party 
in  relation  to  them  is  ambiguously  expressed. ^  "Where  this  is  the 
case,  no  parol  evidence  of  expressed  intention  can  be  admitted.  ■■ 
In  other  words,  and  more  generally  speaking,  if  the  court,  placing 
itself  in  the  situation  in  which  the  testator  or  contracting  party 
stood  at  the  time  of  executing  the  instrument,  and  with  fidl  under- 
standing of  the  force  and  import  of  the  words,  cannot  ascertain 
his  meaning  and  intention  from  the  language  of  the  instrument 
thus  illustrated,  it  is  a  case  of  incurable  and  hopeless  imcertainty, 
and  the  instrument  therefore  is  so  far  inoperative  and  void.^  ^V 

§  301.  There  is  another  class  of  cases,  so  nearly  allied  to  these 
as  to  require  mention  in  this  place,  namely,  those  in  which,  upon 
applying  the  instrument  to  its  subject-matter,  it  appears  that  in 
relation  to  the  sulyect,  whether  person  or  thing,  the  description 
in  it  is  true  in  part,  but  not  true  in  every  particular.  The  rule,  in  • 
such  cases,  is  derived  from  the  maxim :  FaUa  demonstratio  non 
meet,  cum  de  corpore  constat.^     Here  so  much  of  the  description  as 

1  Goblet  V.  Beacliv,  3  Sim.  24 ;  Wigram  Wills,  315 ;  1  Powell  on  Devises  (by  Jar- 
on  the  Interpretation  of  Wills,  pp.  ITU,  man),  p.  348;  4  Cruise's  Di^'.  255,  tit.  32, 
185.  Parol  evidence  is  admissible  to  ex-  ch.  20,  §  60  (Greenleaf's  edit.),  [Greenl. 
plain  short  and  incomplete  terms  in  a  (2d  edit.  1857)  vol.  2,  p.  W»'J  and  notes.] 
written  agreement,  which  /«;•  se  are  unin-  I'atent  ambiguities  are  to  be  dealt  with  by 
telligible.if  the  evidence  does  not  contra-  the  court  alone.  But  where  the  meaning 
diet  what  is  in  writing.  Sweet  v.  Lee,  3  of  an  instrument  becomes  ambiguous,  by 
M.  &  G.  452 ;  Farm.  &  Mech.  Bank  v.  reason  of  extrinsic  evidence,  it  is  for  the 
Day,  13  Verm.  K.  3t).  jury  to  tletermine  it.     Smith  v.  Thomp- 

^  Wigram    on    the    Interpretation   of  son,  18  Law  J.  314 ;  Dog  v.  Beviss,  Id.  | 

Wills,  p.  17y ;  Fish  v.  Hubbard,  21  Wend.  628.     See  .sv//>/(/,  §  280. 
651.  *  6  T.  K.   676 ;   Broom's  Maxims,   p. 

»  Per  Parsons,  C.  J.,  in  Worthington  269;  Bac.  Max.  Reg.  25.    Andsee  Just.  Ins. 

V.  Hylver,  4  Mass.  205 ;  United  States  r.  lib.  2,  tit.  20,  §  2<J.     Siquidem  in  nomine, 

CautriU,   4   Crauuh,   167 ;    1   Jarmau   on  cognomine,  praenomine,  agnomine  Icgata- 


346  LAW   OF   EVIDENCE.  [PART   II. 

is  false  is  rejected ;  and  the  instrument  will  take  effect,  if  a  suffi- 
cient dfsorijjtion  remains  to  ascertain  its  application.  It  is  essential, 
that  enough  remains  to  show  plainly  the  intent.^  "  The  rule," 
said  ]\rr.  Justice  Parke,^  "  is  clearly  settled,  that  when  there  is  a 
sufficient  description  set  forth  of  premises,  l>y  giving  the  particular 
'name  of  a  close,  or  otherwise,  we  may  reject  a  false  demonstration  ; 
hut,  that  if  tlie  premises  be  described  in  general  terms,  and  a  par- 
ticular description  be  added,  the  latter  controls  the  former."  It 
is  not,  however,  because  one  part  of  the  description  is  placed  first 
and  the  other  last  in  the  sentence ;  but  because,  taking  the  whole 
together,  that  intention  is  manifest.  For,  indeed,  "  it  is  vain  to 
imagine  one  part  before  anotlier ;  for  though  words  can  neither  be 
spoken  nor  written  at  once,  yet  the  mind  of  the  author  compre- 
hends them  at  once,  which  gives  vitam  et  modum  to  the  sentence."  ^ 
Therefore,  under  a  lease  of  "  all  that  part  of  Blenheim  Park, 
situate  in  the  county  of  Oxford,  now  in  the  occupation  of  one  S., 
lying "  within  certain  specified  abuttals,  "  with  all  the  houses 
thereto  belonging,  which  are  in  the  occupation  of  said  S.,"  it  was 
held,  that  a  house  lying  within  the  abuttals  though  not  in  the 
occui)ation  of  S.,  would  pass.'*  So,  by  a  devise  of  "  the  farm  called 
Trogue's  Farm,  now  in  the  occupation  of  C,"  it  was  held,  that 
the  whole  farm  passed,  though  it  was  not  all  in  C.'s  occupation.^ 
Thus,  also,  where  one  devised  all  his  freehold  and  real  estate 
"  in  the  county  of  Limerick  and  in  the  city  of  Limerick ; "  and 
the  testator  had  no  real  estates  in  the  county  of  Limerick,  but 
his  real  estates  consisted  of  estates  in  the  county  of  Clare,  which 
was  not  mentioned  in  the  will,  and  a  small  estate  in  the  city 
of  Limerick,  inadequate  to  meet  the  charges  in  the  will ;  it  was 
held,  that  the  dcAdsee  could  not  be  allowed  to  show,  by  parol 
evidence,  that  the  estates  in  the  county  of  Clare  were  inserted 
in  tlie  devise  to  him,  in  the  first  draft  of  the  will,  which  was 
sent  to  a  conveyancer,  to  make  certain  alterations,  not  affect- 
ing those  estates ;  that,  by  mistake,  he  erased  the  words  "  county 
of  Clare ; "  and  that  the  testator,  after  keeping  the  will  by  him 
for  some  time,  executed  it,  without  adverting  to  the  alteration  as 

rii,  testator  erraverit,  cum  de  persona  con-  241,  245,  n.  s.;  [Peaslee  v.  Gee,  19  N.  H. 

Stat,  niliiloniinus  valut  lepUuiii ;  idenique  27o.] 

in  liiLMC'ilihiis  .-LTvattu-;  et  rccie  :  noinina  -  Doe  d.  Smith  v.  Galloway,  5  B.  & 

enim     sii,niiticanil(jiuin    hominum    gratia,  Ad.  43,  51. 

reperta  sunt ;   (jui  si  alio  quolibet   modo  ^  Stukeley  r.  Butler,  Ilob.  171. 

iatelligantur,  nihil  interest.  *  Doe  d.  Smith  v.  Galloway,  5  B.  & 

1  Doe  V.  Hubbard,  15  Ad.  &  El.  240,  Ad.  43. 

«  Goodtitle  v.  Southern,  1  M.  &  S.  299. 


CHAP.  XV.] 


ADMISSIBILITY   OF   PAROL    EVIDENCE. 


347 


to  that  county.^     And  so,  whore  huid  was  dcscrihcd  in  a  patent 
as  lying  in  the  county  of  M.,  and  further  described  by  reference 


1  Miller  v.  Travers,  8  Bing.  244  ;  Doe 
)•.  CliicliesttT,  4  Dow's  P.  C.  05;  Doe  v. 
Lytbril,  4  J\I.  &  8.  uoO.  Tlie  opinion  of 
tlio  court  in  Millor  r.  Travers,  by  Tindal, 
C.  J.,  contains  so  masterly  a  discussion  of 
tiie  lioctrine  in  question,  tliat  no  apoloi;y 
seems  necessary  for  its  insertion*  entire. 
After  statinj^  the  case  witli  some  prelimi- 
nary remarks,  tlie  learneil  chief  justice 
])rocee(le(l  as  follows  :  "  It  may  be  admit- 
ted that,  in  all  cases  in  which  a  ditiiculty 
arises  in  ap])lyin(;  the  words  of  a  will  to 
the  thing  which  is  the  subject-matter  of 
the  devise,  or  to  the  person  of  the  devisee, 
the  ilitlicnlty  or  ambiguity,  which  is  intro- 
duced by  tlie  admission  of  extrinsic  evi- 
dence, may  l)e  rebutted  and  removed  by 
the  protluction  of  further  evidence  upon 
the  same  subject  calculated  to  e.\i)lain 
what  was  the  estate  or  subject-matter 
really  intended  to  be  devised,  or  who  was 
the  perso'n  really  intended  to  take  under 
the  will ;  and  this  ajipears  to  us  to  he  the 
extent  of  the  maxim,  '  Ambiguitas  verbo- 
rum  latens,  veriticatione  suppletur.'  But 
the  cases  to  which  this  construction  ap- 
plies will  be  found  to  range  themselves 
into  two  separate  classes,  distinguishable 
from  each  other,  and  to  neither  of  which 
can  the  present  case  be  referred.  The 
iirst  class  is,  where  the  description  of  the 
thing  devised,  or  of  the  devisee,  is  clear 
upon  the  face  of  the  will ;  but  upon  the 
death  of  the  testator,  it  is  tbund  that  there 
arc  ftiore  than  one  estate  or  subject-matter 
of  devise,  or  more  than  one  jierson,  whose 
description  follows  out  and  fills  the  words 
useil  in  the  will.  As,  where  the  testator 
devises  his  manor  of  Dale,  and  at  his 
death  it  is  found  that  he  has  two  manors 
of  that  name.  South  Dale  and  North  Dale; 
or,  where  a  man  devises  to  his  son  John, 
and  he  has  two  sons  of  that  name.  In 
each  of  these  cases  respectively,  parol 
evidence  is  admissible  to  show  which 
manor  was  intended  to  pass,  and  which 
son  was  intended  to  take.  (Bae.  Max. 
2o ;  Hob.  R.  32;  Edward  Altliam's  case, 
8  Rep.  155.)  The  otiier  class  of  cases  is 
that,  in  which  the  description  contained 
in  the  will  of  the  thing  intended  to  be  de- 
vised, or  of  the  person  who  is  intended  to 
take,  is  true  in  part,  but  not  true  in  every 
j)articular.  As,  where  an  estate  is  de- 
vised called  A,  and  is  described  as  in  the 
occupation  of  B,  and  it  is  fotmd,  that, 
though  there  is  an  estate  called  A,  yet  tiie 
whole  is  not  in  B's  occupation  ;  or,  where 
an  estate  is  devised  to  a  person,  whose 
surname  or  christian  name  is  mistaken ; 


or  whose  description  is  imperfect  or  in.ic- 
curate  ;  in  whicli  latter  class  of  cases  parol 
evidence  is  admissible  to  show  what  estate 
was  intended  to  pass,  and  who  was  the 
devisee  intended  to  take,  jirovided  there 
is  sutBcient  indication  of  intention  appear- 
ing on  the  face  of  the  will  to  justify  the 
application  of  the  evidence.  But  the  case 
now  before  the  court  does  hot  appear  to 
tali  within  either  of  these  distinctions. 
There  are  no  words  in  the  will  which 
contain  an  inipertect,  or,  indeed,  any  de- 
scription whatever  of  the  estates  in  ('lare. 
The  present  case  is  rather  one,  in  which 
the  plaintiff  does  not  endeavor  to  apply 
the  description  contained  in  the  will  to 
the  estates  in  Clare  ;  but,  in  order  to  make 
out  such  intention,  is  compelled  to  intro- 
duce- new  wonls  and  a  new  description 
into  the  body  of  the  will  itself.  The  tes- 
tator devises  all  his  estates  in  the  county 
of  Limerick  and  the  city  of  Limerick. 
There  is  nothing  ambiguous  in  this  devise 
on  the  face  of  the  will.  It  is  found,  upon 
inquiry,  that  he  has  proiierty  in  the  city 
of  Limerick,  which  answers  to  the  descrip- 
tion in  the  wUl,  but  no  property  in  the 
coimty.  This  extrinsic  evidence  produces 
no  ambiguity,  no  difficulty  in  the  applica- 
tion of  the  words  of  his  will  to  the  state 
of  the  projierty,  as  it  really  exists.  The 
^latural  and  necessary  construction  of  the 
will  is,  that  it  passes  the  estate  which  he 
has  in  the  city  of  Limerick,  but  passes  no 
estate  in  the  county  of  Limerick,  where 
the  testator  had  no  estate  to  answer  that 
description.  The  plaintifi',  however,  con- 
tends, that  he  has  a  right  to  prove  that  the 
testator  intended  to  pass,  not  only  the 
estate  in  the  city  of  Limerick,  but  an 
estate  in  a  county  not  named  in  the  will, 
namely,  the  county  of  Clare ;  and  that  the 
will  is  to  be  read  and  construed  as  if  the 
word  '  Chire '  stood  in  the  place  of,  or  in 
addition  to,  tiiat  of  Limerick.  But  this,  it 
is  manifest,  is  not  merely  calling  in  the 
aid  of  extrinsic  evidence  to  apply  the  in- 
tention of  the  testator,  as  it  is  to  be  col- 
lected from  the  will  itself,  to  the  existing 
state  of  his  property ;  it  is  calling  in  ex- 
trinsic evidence  to  introduce  into  the  will 
an  intention  jiot  api)arent  upon  the  tace 
of  the  will.  It  is  not  simply  removing  a 
difficulty  arising  from  a  defective  or  mis- 
taken (lescription ;  it  is  making  the  will 
speak  upon  a  suliji'Ct,  on  which  it  is  alto- 
gether silent,  and  is  the  same  in  eflect  as 
the  filling  uj)  a  blank,  which  the  testator 
might  have  left  in  his  will.  It  annmnts, 
m  short,  by  the  admission  of  parol  evi- 


n  1  ■ 


LAW   OF   EVIDENCE. 


[part  II. 


to  natural  monuinonts ;  and  it  appeared,  that  the  land  described 
Ly  the  monuments  was  in  the  county  of  H.,  and  not  of  M. ;  that 


dence,  to  the  making;  of  a  new  devise  for 
the  testator,  which  tie  is  su])ji().so(l  to  have 
omitted.  Now,  tlie  tirst  oljjectiou  to  tlie 
iiitro(hiction  of  such  evicU-nce  is,  that  it  is 
inconsistent  witii  tlie  rule,  which  reason 
and  sense  hiy  down,  and  which  lias  heen 
universally  estahlished  for  the  construc- 
tion of  wills,  namely,  that  the  testator's 
intention  is  to  he  collecteil  from  the  words 
used  in  the  will,  and  that  words  which  he 
lias  not  used  cannot  be  added.  Denn  v. 
Page,  3  T.  R.  87.  But  it  is  an  objection 
no  less  strong,  that  the  only  mode  of 
proving  the  alleged  intention  of  the  testa- 
tor is  b}-  setting  up  the  draft  of  the  will 
against  the  executed  will  itself  As,  how- 
ever, the  copy  of  the  will  which  omitteil 
the  name  of  the  county  of  Clare  was  for 
some  time  in  the  custody  of  the  testator, 
and  therefore  open  for  his  inspection, 
wliich  copy  was  afterwards  executed  by 
him,  with  all  the  formalities  required  by 
the  statute  of  frauds,  the  presumption  is, 
that  he  must  have  seen  and  approved  of 
the  alteration,  rather  than  that  he  over- 
looked it  by  mistake.  It  is  unnecessary 
to  advert  to  the  danger  of  allowing  the 
draft  of  the  will  to  be  set  up,  as  of  greater 
authority  to  evince  the  intention  of  the 
testator  than  the  will  itself  after  the  will 
has  been  solemnly  executed,  and  after  the 
death  of  the  testator.  If  such  evidence 
is  admissible  to  introduce  a  new  subject- 
matter  of  devise,  why  not  also  to  intro- 
duce tlie  name  of  a  devisee,  altogether 
omitted  in  the  will '.  If  it  is  admissible  to 
introilu8e-'new  matter  of  devise,  or  a  new 
devisee,  why  not  to  strike  out  such  as  are 
contained  in  the  executed  will "?  The 
effect  of  such  evidence  in  either  case 
woidd  be,  that  the  will,  though  made  in 
form  l)y  the  testator  in  his  lifetime,  would 
really  be  made  by  the  attorney  after  his 
death  ;  that  all  the  guards  intended  to  be 
introduced  by  the  statute  of  frauds  would 
be  entirely  destroyed,  and  the  statute  it- 
self virtually  repealed.  And  upon  exami- 
nation of  the  decided  cases,  on  which  the 
plaintiff  has  relied  in  argument,  no  one 
will  be  found  to  go  the  length  of  support- 
ing the  proposition  which  he  contends  for. 
On  the  contrary,  they  will  all  be  found 
consistent  with  the  distinction  above  ad- 
verted to,  —  that  an  uncertainty  which 
arises  from  apjilying  the  description  con- 
taineil  in  tiie  will,  either  to  the  thing  de- 
vised or  to  the  person  of  the  devisee,  may 
be  helped  by  parol  evidence ;  but  that  a 
new  subject-matter  of  devise,  or  a  new 
devisee,  where  the  will  is  entirely  silent 


upon  either,  cannot  be  imported  by  parol 
evidence  into  the  will  itself  Thus,  in 
the  case  of  Lowe  v.  I.i0rd  Iluntiiigtower, 
4  Russ.  581,  n.,  in  which  it  was  held,  that 
evidence  of  collateral  circumstances  was 
admissible,  as,  of  the  several  ages  of  the 
devisees  named  in  the  will,  of  the  fact  of 
their  being  married  or  unmarried,  and  the 
like,  for  the  i)urp()se  of  ascertaining  the 
true  construction  of  the  will;  such  evi- 
dence, it  is  to  be  observed,  is  not  ad- 
mitted to  introduce  new  words  into  the 
will  itself,  but  merely  to  give  a  construc- 
tion to  the  words  used  in  the  will,  consist- 
ent with  the  real  state  of  his  property  and 
famil}- ;  the  evidence  is  produced  to  prove 
facts,  which,  according  to  the  language  of 
Lord  Coke,  in  8  Rep.  155,  '  stand  well 
with  the  words  of  the  will.'  The  case  of 
Standen  v.  Standen,  2  Ves.  589,  decides 
no  more,  than  that  a  devise  of  all  the  resi- 
due of  the  testator's  real  estate,  Vliere  he 
has  no  real  estate  at  all,  but  has  a  power 
of  appointment  over  real  estate,  shall  pass 
such  estate,  over  which  he  has  the  power, 
though  the  power  is  not  referred  to.  But 
this  i)roceeds  ujion  the  jjrinciplc,  that  the 
will  would  he  altogether  inoperative,  un- 
less it  is  taken  that,  by  the  words  used 
in  the  will,  the  testator  meant  to  refer 
to  the  power  of  appointment.  The  case 
of  Mosley  v.  Masscy  and  others,  8  East, 
149,  does  not  appear  to  bear  upon  the 
question  now  under  consideration.  After 
the  parol  evidence  had  established,  'that 
the  local  description  of  the  two  estates 
mentioned  in  the  will  had  been  transposed 
by  mistake,  the  county  of  Radnor  having 
been  applied  to  the  estate  in  JNIonmouth, 
and  vice  versa ;  the  court  held,  that  it  was 
sufficiently  to  be  collected  from  the  words 
of  the  will  itself,  which  estate  the  testator 
meant  to  give  to  the  one  devisee,  and 
which  to  the  other,  indeiiendent  of  their 
local  description ;  all,  therefore,  that  was 
done,  was  to  reject  the  local  descrijition, 
as  unnecessary,  and  not  to  import  any 
new  description  into  the  will.  In  the  case 
of  Selwood  V.  ISIildway,  3  Ves.  30tj,  the 
testator  devised  to  his  wife  part  of  his 
stock  in  the  four  per  cent,  annuities  of  the 
Bank  of  England;  and  it  was  shown  by 
jiarol  evidence,  that  at  the  time  he  made 
his  will  he  had  no  stock  in  the  four  per 
cent,  aimuities,  btit  that  he  had  some 
which  he  had  sold  out  and  had  invested 
the  produce  in  long  annuities.  And  in 
this  case  it  was  held,  that  the  bequest  was 
in  substance  a  bequest  of  stock,  using  tlie 
words  as  a  denomination,  not  as  the  identi- 


I 


CHAP.   XV.]  ADMISSIBILITY    OF    PAROL    EVIDENCE.  3-i9 

part  of  the  (lo.scri{)tiou  Avliich  related  to  tlic  county  was  rejected. 
The  entire  description  in  the  patent,  said  the  learned  judge,  who 


cal  corpus  of  tlie  stock ;  and  as  none  could 
be  found  to  answer  the  description  but  tlie 
lonu'  annuities,  it  was  held,  tiiat  such  stock 
should  pass,  rather  than  the  will  be  alto- 
gether iuoi)erative.  This  case  is  certainly 
a  very  stronjj  one;  but  the  decision  aj)- 
pears  to  us  to  raufze  itself  inuler  the  head, 
that  '  tiilsa  deniunstratio  non  nocet,'  where 
enoufrh  ajjpears  upon  the  will  itself  to 
show  the  intention,  after  the  false  descrip- 
tion, is  rejectetl.  The  case  of  (ioodlitle  r. 
Southern,  1  M.  &  S.  '2'M,  tails  more  close; 
ly  witiiiu  the  principle  last  referred  to. 
A  devise  '  of  all  that  my  farm  called 
Trofjue's  Farm,  now  in  the  occui)ation 
of  A.  C  Upon  lookinjjj  out  for  the  farm 
devised,  it  is  tbund  that  part  of  the  lands 
■wiiich  constituted  Trogue's  Farm  are  in 
the  occujiation  of  another  ])erson.  It  was 
helil,  that  the  thing  devised  was  sufficient- 
1  .•  ascertaineil  by  the  devise  of '  Trogue's 
Farm,'  and  that  the  inaccurate  part  of  the 
devise  might  be  rejected  as  surplusage. 
The  case  of  Day  i:'  Trigg,  1  P.  W.  2^0, 
ranges  itself  precisely  in  the  same  class. 
A  devise  of  all  '  the  testator's  freehold 
houses  in  Aldersgate  Street,'  when  in  fact 
lie  had  no  freehold,  but  had  leasehold 
houses  there.  The  devise  was  held  in 
substance  and  effect  to  be  a  devise  of  his 
houses  there ;  and  that  as  there  were  no 
freehold  houses  there  to  satisfy  the  de- 
scription, the  word  '  freehold  '  should  rath- 
er be  rejected,  than  the  will  be  totally 
void.  But  neither  of  these  cases  affords 
any  authority  in  favor  of  the  plaintiff; 
they  decide  only  that,  where  there  is  a 
suiiicient  description  in  the  will  to  ascer- 
Uiin  the  thing  devised,  a  part  of  the  de- 
scri]ition,  which  is  inaccurate,  nuiy  be 
rejected,  not  that  any  thing  may  be  added 
to  the  will;  thus  following  the  rule  laid 
down  by  Anderson,  C.  J.,  in.  Godb.  R. 
l;jl, — 'An  averment  to  take  away  sur- 
plusage is  good,  but  not  to  increase  that 
which  is  defective  in  the  will  of  the  testa- 
tor.' On  the  contrary,  the  cases  against 
the  plaintiff's  constrviction  apjiear  to  bear 
more  closely  on  the  jioint.  In  the  first 
place,  it  is  well  established,  that  where  a 
complete  blank  is  left  for  the  name  of  the 
legatee  or  devisee,  no  parol  evidence, 
however  strong,  will  be  allowed  to  till  it 
up  as  intended  by  the  testator.  Hunt  r. 
llort,  o  Bro.  C.  C.  oil,  and  in  many  other 
cases.  Now  the  ])rinciple  nnist  be  pre- 
cisely the  same,  whether  it  is  the  person 
of  the  devisee,  or  the  estate  or  thing  de- 
vised, which  is  left  altogether  m  blank. 
And  it  requires  a  very  nice  discrimination 

YOL.    I. 


to  distinguish  between  tlic  case  of  a  will, 
where  the  descrijition  of  the  estate  is  left 
altogether  in  blank,  and  the  present  case, 
where  there  is  a  total  omission  of  the 
estates  in  Clare.  In  the  case  of  Doe  d. 
Oxcnden  r.  Chichester,  4  Dow,  P.  C.  G^ 
it  was  held  by  the  Ilouse  of  Lords,  ii^ 
affirmance  of  the  judgment  below,  thai  in 
the  case  of  a  devise  of  my  estate  of  Ash- 
ton,'  no  ])arol  evidence  was  admissible  to 
show,  that  the  testator  intended  lo  jiass 
not  only  his  lands  in  Ashton,  but  in  the 
adjoining  parishes,  which  he  had  been 
accustomed  to  call  by  the  general  name  - 
of  his  Ashton  estate.  The  chief  justicer 
of  the  Common  Pleas,  in  giving  the  judg- 
ment of  all  the  judges,  says,  '  If  a  testator 
should  devise  his  lands-  of  or  in  Devon- 
shire or  Somersetshire,  it  would  be  im- 
possible to  say,  that  you  ought  to  receive 
evidence,  that  his  intention  was  to  devise 
lands  out  of  those  counties.'  Lord  Eldon, 
then  Lord  Chancellor,  in  page  90  of  the 
Peport,  had  stated  in  substance  the  same 
opinion.  The  case,  so  put  by  Lord  Eldon 
and  the  chief  justice,  is  the  very  case 
now  imder  discussion.  But  the  case  of 
iS'ewburgh  v.  Newburgh,  decided  in  the 
House  of  Lords  on  the  16th  of  June,  1825, 
appears  to  be  in  point  with  the  jirescnt. 
In  that  case  the  appellant  contended,  that 
the  omission  of  the  word  '  Gloucester,'  in 
the  will  of  the  late  Lord  Newburgh,  pro- 
ceeded upon  a  mere  mistake,  and  was 
contrary  to  the  intention  of  the  testator, 
at  the  time  of  making  his  will,  and  in- 
sisted that  she  ought  to  be  allowed  to 
prove,  as  well  from  the  context  of  the  will 
itself,  as  from  other  extrinsic  evidence, 
that  the  testator  intended  to  devise  to  her 
an  estate  tor  life  as  well  in  the  estates  in 
Gloucester,  which  was  not  inserted  in  the 
will,  as  in  the  county  of  Sussex,  which 
was  mentioned  therein.  The  question, 
'  whether  parol  evidence  was  admissible 
to  prove  such  mistake,  for  the  purpose  of 
correcting  the  will  and  entiding  the  ap- 
pellant to  the  Gloucester  estate,  as  if  the 
word  "  tiloucester  "  had  been  inserted  in 
the  will,'  was  submitted  to  the  judges, 
and  Lord  Chief  Justice  Abbott  declared  it 
to  be  the  unanimous  opinion  of  those  who 
had  heard  the  argument  that  it  could  not. 
As  well,  therefore,  upon  the  authority  of 
the  cases,  and  more  particularly  of  that 
which  is  last  referred  to,  as  upon  reason 
and  principle,  we  think  the  evidence  of- 
fered by  the  plaintiff  would  be  inadmissi- 
ble upon  the  trial  of  the  issue."  [*As  a 
general   rule,    the   courts   adhere   to   the 


30 


S."0 


LAW   OF   EVIDENCE. 


[part  II. 


i.U 


delivered  the  opinion  of  the  court,  must  be  taken,  and  the  identity 
of  the  land  ascertained  by  a  reasonable  construction  of  the  lan- 
guage used.  If  there  be  a  repugnant  call,  which,  by  the  other 
calls  in  the  patent,  clearly  appears  to  have  been_made_jlijrmigir 
mistake,  that  does  not  make  void  the  patent.  But  if  the  land 
"gfaivEea  be^so  inaccurately  described  as  to^render^^  its  id^ 
^■wholly  uncertain,  it  is  admitted  that  the .^raut-iS-Void.^  So,  if 
lands  are  described  by  the  nunil)cr  or  name  of  the  lot  or  parcel, 
and  also  by  metes  and  bounds,  and  the  grantor  owns  lands  an- 
swering to  the  one  description  and  not  to  the  other,  the  description 
of  the  lands  which  he  owned  will  be  taken  to  be  the  true  one,  and 
the  other  rejected  q,s  falsa  demonstration 


maxim,  Veritas  nominis  tollit  erroroni  de- 
iiionstrationis.  Colcluugh  v.  Smith,  10  L. 
T.  N.  s.  918.  But  tliore  have  been  very 
markeil  departures  ironi  it,  where  it  was 
ol)vi()us  tliat  tlie  description  was  more  re- 
liable than  the  name.) 

^  Boardman  v.  Keed  and  Ford's  Les- 
sees, 6  Peters,  328,  345,  per  McLean,  J. 

-  Loomis  ('.  Jackson,  19  Johns.  449 ; 
Lusli  V.  Druse,  4  Wend.  313 ;  Jackson  v. 
Marsh,  6  Cowen,  281  ;  Wortliing'ton  v. 
Hylyer,  4  Mass.  19(5 ;  Blague  v.  Gold,  Cro. 
Car.'  447;  Swift  v.  Eyres,  Id.  548.  So, 
wliere  one  devised  "all  that  f ireho/d  farm 
c  died  the  Wick  Parm,  containing  two 
hundred  acres  or  thereabouts,  occupied 
by  W.  E.  as  tenant  to  nic,  with  the  ai)pur- 
tenances,"  to  uses  applicable  to  freeliold 
propert^^  alone ;  and  at  the  date  of  tiie 
will,  and  at  the  death  of  tlie  testator,  W. 
E.  held,  under  a  lease  from  him,  two 
lunidred  and  two  acres  of  land,  whicli 
were  descriljcd  in  the  lease  as  the  Wick 
Farm,  but  of  which  twelve  acres  were  not 
freehold,  but  were  leascluild  only ;  it  was 
lield  that  these  twelve  acres  did  not  i)ass 
by  the  lease.  Hall  v.  Fisher,  I  Colly er. 
If.  47.  Tlie  ol)ject  in  cases  of  this  kind 
is,  to  interpret  the  instrument,  tliat  is,  to 
ascertain  the  intent  of  the  partii's.  Ti.ie 
rule  to  lind  the  intent  is,  to  "ive  most 
(;P'Vc;^'to  tho?e   tlun'js' aliout  which  men 


^thoje  tITiii;. 
are  least  h;il)le  t" 
TJainsford,  17  .M,i,->.  Jin;  wrl  ver  r.  Walk- 
er, 9  Crunch,  178.  (Mi  this  principle,  the 
things  usually  called  for  in  a  grant,  that 
is,  tlie  things  by  which  the  land  granted 
is  described,  have  been  tlius  marshalled  : 
First.  The  highest  regard  is  had  to  natu- 
ral boundaries.  Si-roml/i/.  To  lines  actual- 
ly run,  and  corners  actually  marked  at  the 
time  of  tlie  grant.  Thinllii.  If  the  lines 
and  courses  of  an  adjoining  tract  are 
called  for,  the  lines  will  be  extended  to 


tliem,  if  they  are  snfRciently  established, 
and  no  other  departure  from  the  deed  is 
thereby  required ;  marked  lines  prevail- 
ing over  those  which  are  not  marked. 
Futiii/ili/.  To  courses  and  distances ;  giv- 
ing preference  to  tlic  one  or  the  other, 
according  to  circumstances.  See  Cherry 
V.  Slade,  3  Murphy,  82 ;  Dogan  v.  Seek- 
right,  4  Hen.  &  Munf  1-25,  130;  Prest(m 
V.  Bowmar,  (J  Wheat.  582 ;  Loring  t\  Nor- 
ton, 8  Greenl.  61 ;  2  Flintoff  on  Heal  Prop- 
erty, 537,  538 ;  Nelson  r.  Hall,  1  IMcLean's 
li.  518;  Wells  v.  Cronniton,  3  Kob.  Louis. 
R.  171 ;  [Kellogg  v.  Smith,  7  Cush.  375, 
379-384;  Newhall  v.  Ireson,  8  lb.  595; 
llayncs  i\  Young,  3(j  ^Nlaine,  557.]  And 
in  determining  the  lines  of  old  surveys, 
in  the  absence  of  any  monuments  to  be 
found,  the  variation  of  the  needle  from 
the  true  meridian,  at  the  date  of  the  origi- 
nal survey,  should  be  ascertained  ;  and 
this  is  to  be  found  by  the  jury,  it  being  a 
question  of  fact,  and  not  of  law.  Biu'gin 
V.  Chenault,  9  B.  Monroe,  285 ;  2  Aul 
Law  Journ.  470,  n.  s.  Monuments  meii^ 
tioned  in  the  deed,  and  not  then  existing, 
but  which  are  forthwith  erected  by  the 
parties,  in  order  to  conform  to  the  deed, 
will  be  regarded  as  the  monuments  re- 
ferred to,  anil  will  control  the  distances^ 
given  in  the  deed.  Makepeace  v.  Banf 
'croft,  12  ^lass.  4t)S);  Davis  v.  Kainsford, 
■  17  Mass.  207 ;  [Blaney  v.  Bice,  20  Pick. 
(J2;  Cleaveland  v.  Flagg,  4  Cush.  76,  81 ;] 
Leonard  i\  Morrill,  2  Is'.  Ilamp.  197.  And 
if  no  monuments  are  inentioneil,  evidence 
of  long-continued  occujjation,  tliough  be- 
yoml  the  given  distances,  is  admissible. 
Uwen  i\  Bartholomew,  9  Pick.  520.  If 
the  descrij)ti()n  is  ambiguous  or  doubt- 
ful, parol  evidence  of  the  practical  con- 
struction given  by  the  parties,  by  acts  of 
occupancA',  recognition  of  monuments  or 
boundaries,  or  otherwise,  is  admissible  in 


CHAP.  XV.]  ADMISSIBILITY   OF   PAROL    EVIDEXCE. 


351 


§  302.  Returning  now  to  the  consideration  of  the  general  rule, 
that  extrinsic  verbal  evidence  is  not  admissiljle  to  contradict  or 
alter  a  written  instrument,  it  is  further  to  be  observed,  that  this 
rule  does  not  exclude  such  evidence,  when  it  is  adduced  to  prove' 
that  the  written  agreement  is  totally  discharged.  If  the  agreement 
lie  by  deed,  it  cannot,  in  general,  be  dissolved  by  any  executory 
agreement  of  an  inferior  nature ;  but  any  oljligation  by  writing 
not  under  seal,  may  be  totally  dissolved,  before  breach,  hy  an  oral 
agreement.^  And  there  seems  little  room  to  doubt,  that  this  rule 
will  apply,  even  to  those  cases  where  a  writing  is  by  the  statute 
of  frauds  made  necessary  to  the  validity  of  the  agreement.^  But 
where  there  is  an  entire  agreement  in  writing,  consisting  of  divers 
particulars,  partly  requisite  to  be  in  writing  by  the  statute  of 
frauds,  and  partly  not  within  the  statute,  it  is  not  competent  to 
prove  an  agreed  variation  of  the  latter  part,  by  oral  evidence, 
though  that  part  might,  of  itself,  have  been  good  without  writing.^ 
[*The  question  of  the  alteration  of  contracts  in  writing  and  under 
seal,  by  subsequent  oral  agreements,  is  extensively  discussed  in 
an  early  case'^  in  Vermont;  and  the  principle  maintained,  that 


n 


1 

m 


N 


aid  of  the  interpretation.  Stone  v.  Clark, 
1  Met.  378;  [Kellogg  v.  Smith,.?  Cush. 
375,  383 ;  Waterman  v.  Johnson,  13  Pick. 
2(51;  Frost  v.  Spanieling,  19  Pick.  445; 
Clark  V.  Munvan,  22  Pick.  410  ;  Crafts  v. 
Hibbard,  4  Met.  K.  438;  Civil  Code  of 
Louisiana,  art.  1951 ;   Wells  v.  Compton, 

3  Kob.  Louis.  R.  171.  Words  necessary 
to  ascertiun  the  premises  must  be  re- 
tained ;  but  words  not  necessary  for  that 
purpose  may  be  rejected,  if  inconsistent 
with  the  others.     Worthington  v.  Ilylyer, 

4  Mass.  205 ;  Jackson  v.  Sprague,  1  Paine, 
494 ;  Vose  v.  Handy,  2  (Jreenl.  322.  The 
expression  of  quantity  is  descriptive,  and 
may  well  aid  in  finding  the  intent,  where 
the  boundaries  are  doubtful.  ]Mann  i\ 
Pearson,  2  Johns.  37,  41  ;  I'erkins  r.  Web- 
ster, 2  N.  H.  287;  Thorndike  v.  Kichanls, 
1  Shepl.  437  ;  Allen  v.  Allen,  3  Shej.l.  287  ; 
Woodman  v.  Lane,  7  N.  II.  241 ;  Pernam 
V.  Weed,  6  Mass.  131 ;  Kiddick  v.  Leggatt, 
3  Murphy,  539,  544 ;  supra,  §  290.  See 
also  4  Cruise's  Dig.  tit.  32,  c.  21,  §  31, 
note  (Greenleaf's  edit.),  [2  Greonleaf's 
edit.  (I85C))  vol.  2,  pp.  028-641,  and  notes,] 
wliere  this  subject  is  more  fiilh'  considered. 

1  Bull.  N.  P.  152;  Mihvord  v.  Ingram, 
1  Mod.  206  ;  2  Mod.  43,  .s.  c.  ;  Edwards  v. 
Weeks,  1  Mod.  202 ;  2  .Mod.  259,  s.  c. ; 
1  Freem.  230,  s.  c.  ;  Lord  Milton  v.  Edge- 
worth,  5  Bro.  P.  C.  318  ;  4  Cruise's  Dig. 
tit.  32,  c.  3,  §  51 ;   Clement  v.  Durgin,  5 


Greenl.  9;  Cottrill  v.  M3'rick,  3  Fairf. 
222;  RatclifF  v.  Pemberton,  1  Esp.  35^^ 
Fleming  v.  Gilbert,  3  Johns,  531.  But  if 
the  obligation  be  by  deed,  and  there  be  a 
parol  agreement  in  discharge  of  such  obli- 
gation, if  the  parol  agreement  be  exc-  \  ^ 
cuted,  it  is  a  good  discharge.  Dearboriu»  -O^  'i^ 
V.  Cross,  7  Cowen,  48.  See  also  Littler  v. 
Holland,  3  T.  R.  390 ;  Peytoe's  case,  9 
Co.  77 ;  Kaye  v.  Waghorne,  1  Taunt. 
428 ;  Le  Fevre  v.  Le  Fevre,  4  S.  &  R.  241 ; 
Suydam  v.  Jones,  10  Wend.  180  ;  Bar 
nard  v.  Darling,  11  Wend.  27,  30.  Ir 
equity,  a  parol  rescission  of  a  written  con 
tract,"  after  breach,  may  be  set  up  in  ba: 
of  a  bill  for  specific  performance.  Walk 
er  V.  Wheatley,  2  Humphreys,  R.  Wit 
By  the  law  of  Scotland,  no  written  obli- 
gation wliatever  can  be  extinguished  or 
renounced,  without  either  the  creditor's 
oath,  or  a  writing  signed  by  him.  Tait 
on  Evid.  p.  325. 

2  Pliil.  &  Am.  on  Evid.  776;  2  Phil. 
Evid.  363  ;  Goss  v.  Ld.  Nugent,  5  B.  &  Ad. 
58,  65,  66,  i)er  Ld.  Denman,  C.  J. ;  Stow- 
ell  V.  Robinson,  3  Ring,  n.c  928;  Cum- 
mings  V.  Arnold,  3  Met.  486;  [Stearns  v. 
Hall,  9  Cush.  31,  34.] 

3  Harvev  v.  Grabham,  5  Ad.  &  El.  61, 
74;  IMarshall  v.  Lynn,  6  M.  &.  W.  109. 

*  [* Lawrence  v.  Dole,  U  Vt.  R.  549. 
The  same  is  held  in  Leathe  v.  Bullard,  8 
Gray,  545.] 


I 


352  LAW   OF   EVIDE^*CE.  [part   II. 

a  contract  under  seal  may  be  modified  by  a  naked  oral  agreement, 
provided  the  other  party  have  so  acted  upon  such  modification 
that  he  cannot  be  placed  in  statu  quo.l 

I  §  303.  Neither  is  the  rule  infringed  by  the  admission  of  oral 
(evidence  to  prove  a  7ieiv  and  distinct  agreement,  upon  a  new  con- 
•  sideration,  whether  it  be  as  a  substitute  for  the  old,  or  in  addition 
I  to  and  beyond  it.  And  if  subsequent,  and  involving  the  same 
subject-matter,  it  is  immaterial  wliethcr  the  new  agreement  be 
entirely  oral,  or  wliether  it  refers  to  and  partially  or  totally  adopts 
the  provisions  of  the  former  contract  in  writing,  provided  the  old 
agreement  be  rescinded  and  abandoned. ^  Tims,  where  one  by  an 
instrument  under  seal  agreed  to  erect  a  building  for  a  fixed  price, 
which  was  not  an  adequate  compensation,  and,  having  performed 
part  of  the  work,  refused  to  proceed,  and  the  obligee  thereupon 
promised  that,  if  he  would  proceed,  he  should  be  paid  for  his  labor 
and  materials,  and  should  not  suffer,  and  he  did  so ;  it  was  held 
that  he  might  recover  in  assumpsit  upon  this  verbal  agreement.^ 
So,  where  the  abandonment  of  the  old  contract  was  expressly 
mutual.^  So,  where  a  ship  was  hired  by  a  charter-party  under 
seal,  for  eight  months,  commencing  from  the  day  of  her  sailing 
from  Gravescnd,  and '  to  be  loaded  at  any  British  port  in  the 
English  Channel ;  and  it  was  afterwards  agreed  by  parol  that  she 
should  be  laden  in  the  Thames,  and  that  the  freight  should  com- 
mence from  her  entry  outwards  at  the  custom-house ;  it  was  held 
that  an  action  would  lie  upon  the  latter  agreement.^ 

§  304.  It  is  also  well  settled  that,  in  a  case  of  a  simple  contract 
in  writing,  oral  evidence  is  admissible  to  show  that,  by  a  subse- 
quent agreement,  the  time  of  performance  was  enlarged,  or  the 
place  of  performance  changed,  the  contract  having  been  performed 
according  to  the  enlarged  time,  or  at  the  substituted  place,  or  the 

1  Burn  V.  Miller,  4  Taunt.  745 ;  Foster  tracts,  for  service  on  two  distinct  voyages, 

V.  Alanson,  2  T.  R.  479  ;    Shack  v.  An-  are  made  at  the  same  time,  and  one  only 

thony,  1.  M.  &  S.   573,  575 ;    Sturdy  v.  is  reduced  to  writinjj,  the  otlier  may  be 

Arnaud,  3  T.  R.  596 ;  Brigham  v.  Rogers,  proved   by   parol.     Page   v.    Sheffield,   2 

17  Mass.  573,  per  Putnam,  J. ;  Heard  v.  Curtis,  C.  C.  377  ;    Cilley  v.  Tenney,  31 

Wadham,  1  East,  G30,  per  Lawrence,  J. ;  Vt.  401.]     [*But  new  terms  cannot  be  in- 

1  Chitty  on  PI.  93  ;  Ricliardson  r.  Hooper,  corporatcd    into    a   written    contract    by 

13  Pick.  4  Ml ;  Brewster  r.  Countrvman,  parol.  Adler  v.  Friedman,  16  Cal.  138.] 
12  Wend.  416;  Dehicroix  u.  Bulkeley,  13  ^  Munroe    v.    Perkins,    9    Pick.    298. 

Wend.    71 ;    Vicary  v.  Moore,  2   Watts,  [See  also  Rand  v.  Mather,  11  Cush.  1.] 
456,   457,   per   Gibson,    C.  J.;    Brock  v.  **  Lattimore  v.  Ilarsen,  14  Johns.  330. 

Sturdivant,    3    Fairf.    81 ;     Marshall     v.  *  Wiiite    v.    Parkin,    12    East,     578 ; 

Baker,  1   Appleton,  R.   402 ;    Cliitty  on  [Holmes  v.  Doane,  9  Cush.  135.] 
Contracts,  p.  88.    [Where  two  distinct  con- 


CHAP.  XV.]  ADMISSIBILITY   OF   PAROL   EVIDENCE. 


553 


performance  having  been  prevented  by  the  act  of  the  other  party  ; 
or  that  the  damages  for  non-performance  were  waived  and  re- 
mitted ;  ^  or  that  it  was  founded  upon  an  insufficient  or  an  unlaw- 
ful consideration,  or  was  without  consideration  ;  ^  or  that  the  agree- 
ment itself  was  ivaived  and  abandoned.^  So,  it  has  been  held 
competent  to  j^rove  an  additional  and  supphtory  agreement,  by 
j3arol ;  as,  for  example,  where  a  contract  for  the  hire  of  a  horse  was 
in  writing,  and  it  was  further  agreed  by  parol  that  accidents, 
occasioned  by  his  shying,  should  be  at  the  risk  of  the  hirer.*  A 
further  consideration  may  also  be  proved  by  parol,  if  it  is  not  of 
a^TIiffereniT  nature  from  that  wIiTcIi  Ts^'espressecl  in  the"^cecr.^ 
And  if  the  deed  appears  to  be  a  voluntary  conveyance,  a  valuable 
consideration  may  be  proved  by  parol.*^ 

§  305.  In  regard  to  receipts,  it  is  to  be  noted  that  they  may  be 
eitlier  mere  acknowledgments  of  payment  or  delivery,  or  they  may 
also  contain  a  contract  to  do  something  in  relation  to  the  thing 
delivered.     In  the  former  case,  and  so  far  as  the  receipt  goes  onl]^ 


1  Jones  V.  Barkley,  2  Dous:.  684,  694; 
Hotham  v.  E.  In.  Co.  1  T.  R.  638 ;  Cum- 
mings  V.  Arnold,  3  Met.  486  ;  Clement  v. 
Durgin,  5  Greenl.  9 ;  Keating  v.  Price, 
1  Johns.  Cas.  22 ;  Fleming  v.  Gilbert,  3 
Johns.  530,  531,  per  Thompson,  J. ;  Er- 
win  I'.  Saunders,  1  Cowen,  249 ;  Frost  v. 
Everett,  5  Cowen,  497 ;  Dearborn  v. 
Cross,  7  Cowen,  50;  Neil  v.  Cheves,  1 
Bailey,  537,  538,  note  (a)  ;  Cuff  c.  Penn, 

I  M.  &  S.  21 ;  Robinson  v.  Bachelder,  4 
N.  Hamp.  40;  Medomak' Bank  v.  Curtis, 

II  Shepl.  36  ;  Blood  v.  Goodrich,  9  Wend. 
68;  Youqua  v.  Nixon,  1  Peters,  C.  C.  R. 
221.  But  see  Marshall  v.  Lynn,  6  M.  & 
W.  109. 

2  See  supra,  §  26,  cases  in  note  ;  Mills 
V.  Wyman,  3  Pick,  207 ;  Erwin  v.  Saun- 
ders, 1  Cowen,  249 ;  Hill  i\  Buckminster, 
5  Pick.  391 ;  Rawson  v.  Walker,  1  Stark, 
R.  361 ;  Foster  v.  Jolly,  1  C.  M.  &  R.  707, 
708,  per  Parke,  B. ;  Stackpole  v.  Arnold, 
11  Mass.  27,  32;  Folsom  v.  Mussey,  8 
Green).  400. 

3  Ballard  v.  Walker,  3  Johns.  Cas.  00 ; 
Poth.  on  Obi.  pt.  3,  ch.  6,  art.  2,  No.  636 ; 
Marshall  v.  Baker,  1  Appleton,  402 ;  Eden 
V.  Blake,  13  M.  &  W.  614. 

*  Jeffery  v.  Walton,  1  Stark.  R.  267. 
In  a  suit  for  breach  of  a  written  agree- 
ment to  manufacture  and  deliver  weekly 
to  the  plaintiff  a  certain  quantity  of  cloth, 
at  a  certain  price  per  .yard,  on  eight 
months'  credit,  it  was  held,  that  the  de- 
fendant might  give  in  evidence,  as  a  good 


defence,  a  subsequent  parol  agreement 
between  him  and  the  plaintiff,  made  ou 
sufficient  consideration,  by  which  the 
mode  of  payment  was  varied,  and  that 
the  plaintiff  had  refused  to  perform  the 
I)arol  agreement.  Cummings  v.  Arnold, 
3  Met.  486.  See  further,  Wright  v. 
Crookes,  1  Scott,  n.  s.  685.  Where  the 
action  is  for  work  and  labor  extra  and 
beyond  a  written  contract,  the  plaintiff 
will  be  held  to  produce  the  written  con- 
tract, for  the  purpose  of  showing  what 
was  included  in  it.  Buxton  v.  Cornish, 
12  M.  &  W.  426 ;  Vincent  v.  Cole,  1  M.  & 
Malk.  257.  [It  may  be  shown  by  parol 
that,  at  the  time  a  promissory  note  was 
given  by  A  to  B  for  money  lent,  an  agree- 
ment was  made  to  pay  a  certain  sum  as 
extra  interest.  Rohan  v.  Hanson,  11 
Cush.  44,  46.  The  date  of  a  contract  in 
writing,  when  referred  to  in  the  body  of 
the  contract,  as  fixing  the  time  of  pay- 
ment, cannot  be  altered  or  varied  by  pa^ 
rol.  Joseph  v.  Bigelow,  4  Cush.  82,  84. 
The  time  of  performance  of  a  written  con 
tract  within  the  statute  of  frauds,  may  bo 
shown  to  have  been  enlarged  by  a  subse- 
quent parol  agreement.  Stearns  v.  Hall, 
9  Cush.  31,  34.] 

5  Clifford  r.  Turrill,  9  Jur.  G83.  [Mil- 
ler V.  Goodwin,  8  Gray,  542;  Pierce  v. 
Weymouth,  45  Maine,  481 ;  Shoenberger 
V.  Zook,  34  Penn.  24.] 

0  Pott  V.  Todhunter,  2  CoUyer,  Ch. 
Cas.  76,  84. 


« 


30* 


Co4 


LAW   OP   EVIDENCE. 


[part  II. 


to  acknowledge  payment  or  delivery,  it  is  merely  primd  fade 
cvicTcnco  of'tlie  fact,  and  not  conclusive ;  anH  tliercTore  tlic  fact 
Avliicli  it  recItL's  may  be  contradicted  'by  oral  testimony.  But  in 
so  far  as  it  is  evidence  of  a  contract  between  the  parties,  it  stands 
on  the  footing  of  all  other  contracts  in  writing,  and  cannot  be 
contradicted  or  varied  by  parol. ^  Thus,  for  example,  a  bill  of 
lading,  whicli  partakes  of  botli  these  characters,  may  be  contra- 
dicted and  explained  in  its  recital,  that  tlie  goods  were  in  good 
order  and  well  conditioned,  by  showing  that  their  internal  order 
and  condition  was  bad ;  and,  in  like  manner,  in  any  other  fact 
which  it  erroneously  recites ;  but  in  other  respects  it  is  to  be 
treated  like  other  written  contracts  .^ 

"We  here  conclude  the  Second  Part  of  this  Treatise. 


-,,,^  1  Stratton  V.  Rastall,  T.  R.  36G  ;  Alner 

^**»        V.   George,  1    Canipb.  392 ;   supra,  §  26, 

'     note;   Stackpole  f.  Arnold,  11   Mass.  27, 

rs      32 ;  Tucker  v.  Maxwell,  Id.  143 ;  Johnson 

y    ^     r.  Johnson,  Id.  359, 3G3,  per  Parker,  C.  J. ; 

J     ^\^  "Wilkinson  i'.  Scott,  17  Mass.  257;  Rex  v. 

\      ^       Scammonden,   3   T.   R.  47-4;   Rollins   v. 

^     S      Dyer,  4  Shepl.  475 ;  Brooks  v.  Wliite,  2 

Y      '        Met.  283 ;  Niles  v.   Culver,  4  Law  Rep. 

ji      ^       72,  N.  8.     "  The  true  view  of  the  subject 

-      ^       seems  to  be,  that  such  circumstances,  as 

would  lead  a  Court  of  Equity  to  set  aside 

a  contract,  such  as  fraud,  mistake,  or  sur- 

(V'        prise,  may  be  shown  at  law  to  destroy  the 

\    Vj!      etfect  of  a  receipt."     Per  Williams,  J., 

'^"  in   Fuller  v.    Crittenden,   9    Conn.   406 ; 

siijira,  §  285.  [A  discharge  on  an  execu- 
tion is  only  a  receipt  and  may  be  ex- 
plained by  parol  evidence.  Edgerly  v. 
Emerson,  3  Poster,  555;  supra,  §  212. 
See  also  Brown  v.  Cambridge,  3  Allen, 
474.] 

2  Barrett  v.  Rogers,  7  Mass.  297  ;  Ben- 
jamin V.  Sinclair,  1  Bailey,  174.  In  the 
latter  case  it  was  lield,  that  the  recital  in 
the  bill  of  lading,  as  to  the  good  order  and 
condition  of  the  goods,  was  applicable  only 
to  their  external  and  apparent  order  and 
condition;  but  that  it  did  not  exteiiil  to 
the  quality  of  the  material  in  which  they 
■were  onveloped,  nor  to  secret  defects  in 
the  goods  tiiemselves ;  and  that,  as  to  de- 
fects of  the  two  latter  descriptions,  parol 
evidence  was  admissible.  See  also  Smith 
V.  Brown,  3  Hawks,  580;  May  v.  Bab- 
cock,  4  ()iii()  R.  334,  346;  [Clark  r.  Barn- 
well, 12  How.  U.  S.  272;  O'Brien  v. 
Gilchrist,  34  Elaine,  554 ;  Ellis  v.  Willard, 
5  Selden,  529  ;  Pitzliugh  v.  Winian,  lb. 
559,  566 ;  McTyer  v.  Steele,  26  Ala.  487. 
Where  tiie  payee  of  a  promissory  note, 
not  negotiable',  for  §120,  delivered  it  to  a 


third  person,  and  took  back  the  following 
writing:  "Received  of  A  a  note  (de- 
scribing it),  for  which  1  am  to  collect  and 
account  to  the  said  A  the  sum  of  §110, 
when  the  above  note  is  collected,  or  re- 
turn said  note  back  to  said  A  if  I  choose ; " 
it  was  decided  that  parol  evidence,  which 
was  offered  to  show  that  tlie  note  was  held 
on  other  and  different  terms,  was  rightly 
exchuled.  Langdon  v.  Langdon,  4  Gray, 
186,  188;  Furbush  v.  Goodwin,  5  Foster, 
425 ;  Wood  v.  Whiting,  21  Barb.  190,  197. 
See  also  Alexamler  v.  Moore,  19  Mis.  143; 
Sutton  V.  Kettell,  Sprague's  Decisions, 
309.] 

[  §  305a.  "  The  rule,  that  parol  evi- 
dence is  not  admissible  to  vary  or  control 
a  written  contract,  is  not  applicable  to 
mere  bills  of  parcels  made  in  the  usual 
form,  in  which  nothing  appears  but  the 
names  of  the  vendor  and  vendee,  the  arti- 
cles purchased,  with  the  jirices  affixed, 
and  a  receipt  of  payment  by  the  vendor. 
These  form  an  exception  to  the  general 
rule  of  evidence,  being  informal  docu- 
ments, intended  only  to  specify  prices, 
quantities,  and  a  receipt  of  payment,  and 
not  used  or  designed  to  embody  and  set 
out  the  terms  and  conditions  of  a  contract 
of  bargain  and  sale.  They  are  in  the  na- 
ture of  receipts,  and  are  alwaj's  open  to 
evidence,  which  proves  the  real  terms 
upon  which  the  agreement  of  sale  was 
made  between  the  parties.  1  Cowen  & 
Hill's  note  to  Phil,  on  Evid.  385,  n.  229 ; 
2  lb.  603,  n.  295 ;  Harris  v.  Johnston,  3 
Cranch,  311 ;  Wallace  v.  Rogers,  2  N.  H. 
506;  Bradford  v.  Manley,  13  Mass.  139; 
Fletcher  v.  Willard,  14  Pick.  464."  By 
Bigelow,  J.,  in  Hazard  v.  Loring,  10  Cusli. 
267,  268.  The  words,  on  a  bill  of  parcels, 
"  consigned  6  mo.  "  and  "  Tei'ms  Cash," 


CHAP.  XV.]              ADMISSIBILITY   OF   PAROL   EVIDENCE.  355 

may  be  explained  by  parol.     George  v.  Court  of  Appeals,  336.     So  also  that  an 

Joy,  19  N.  H.  544.     See  Linsley  v.  Love-  option  was  intended  to  be  left  with  one  of 

ly,  26  Vt.  123.]  the   parties   when   tlie   writing  is  silent. 

[*  It  may  be  shown  that  a  bond,  abso-  Chaltant  v.  Williams,  35  Penn.  St.  212. 

lute  in  its  terms,  was  intended  as  collat-  But  this  latter  seems  questionable  upon 

eral  security  for  the  debt  of  third  parties,  strict  principle.] 
Chester  v.  Bank  of  Ivingston,  16  N.  Y. 


PART    III. 


OF   THE 


IIN'STRUMEJ^TS    OF    EYIDEKCE. 


[So: 


PAP.T   III. 

OF  THE  INSTRUMENTS  OF  EVIDENCE. 


CHAPTEE    I. 

OF  WITNESSES,   AND   THE   MEANS   OF   PROCUEING   THEIR   ATTENDANCE. 

[*  §  30G.  The  instruments  of  evidence  next  considered. 

307.  These  are  written  and  unwritten. 

308.  Classiiication  of  the  subject. 

809.  Attendance  of  witnesses  compelled  by  subpoena. 

310.  The  witness  fees  must  be  paid  in  advance. 

311.  The  state  is  excused  from  paying  witnesses  in  advance. 

312.  Witness  imprisoned  may  be  brought  up  on  habeas  corpus. 

313.  State  witnesses  may  be  recognized  for  their  appearance. 

314.  One  day's  notice  required  in  all  cases. 

315.  The  service  must  be  personal,  and  witliin  jurisdiction  of  court. 

316.  Witness  exempt  from  arrest,  going  to,  attending,  and  returning  from  court. 

317.  Privilege  ^tends  to  all  tribunals  in  nature  of  courts. 

318.  Court  will,  in  such  cases,  discharge  arrest,  on  motion. 

319.  Witness  refusing  to  attend,  or  to  give  evidence,  may  be  punished  for  con- 

tempt. 

320.  Depositions  may  be  taken  where  witness  cannot  attend  court. 

321.  Provisions  in  the  different  states  for  taking  depositions. 

322.  The  mode  of  taking  depositions  in  United  States  Courts. 

323.  Regularity  and  cause  of  taking  must  appear. 

324.  United  States  Courts  take  depositions  by  dedimus  potestatem. 

325.  Testimony  may  be  perpetuated  in  equity.] 

§  306.  Having  thus  considered  tlic  general  nature  and  princi- 
ples of  evidence,  and  the  rules  which  govern  in  the  production  of 
evidence,  we  come  now,  in  the  third  place,  to  speak  of  the  instru- 
ments of  evidence,  or  the  means  by  which  the  truth  in  fact  is 
established.!     In  treating  this  subject,  we  shall  consider  how  such 

1  Parties  are,  ordinarily,  permitted  to  the  discretion  of  the  judge,  be  admitted, 
exercise  their  own  judgment,  as  to  the  if  it  is  expected  to  become  relevant  by  its 
order  of  introducing  their  proofs.  Lynch  connection  with  other  testimony  to  be 
V.  Benton,  3  Kob.^  Louis.  R.  105.  And  afterwards  offered.  The  State  v.  M'AUis- 
testimony,  apparently  irrelevant,  may,  in    ter,  11  Shepl.  139. 

[359] 


^V^       300  LAW   OF  EVIDENCE.  [PART  III. 

instruments  arc  obtained  and  used,  and  their  admissibility  and 
eflfect. 

§  307.  The  instruments  of  evidence  are  divided  into  two  general 
«  classes,  namely,  unwritten  and  uritten.     The  former  is  more  natu- 

rally to  be  first  considered,  because  oral  testimony  is  often  the 
first  step  in  proceeding  by  documentary  evidence,  it  being  fre- 
quently necessary  first  to  establish,  in  that  mode,  the  genuineness 
of  the  documents  to  be  adduced. 
}  §  308.  By  umvritten,  or  oral  evidence,  is  meant  the  testimony 

given  by  witnesses,  vivd  voce,  either  in  open  court,  or  before 
'  a  magistrate,  acting  under  its  commission,  or  the  authority  of  law. 
^  ^  Under  this  head  it  is  proposed  briefly  to  consider,  —  (1.)  The 
^_  I  method,  in  general,  of  procuring  the  attendance  and  testimony 
•^^  of  witnesses  ;  —  (2.)  The  competency  of  witnesses  ;  —  (3.)  The 
^  course  and  practice  in  the  examination  of  witnesses  ;  and  herein, 

^    ^     of  the  impeachment  and  the  corroboration  of  their  testimony. 

§  309.  And  first,  in  regard  to  the  method  of  procuring  the  at- 
tendance of  witnesses,  it  is  to  be  observed  that  every  court,  having 
power  definitely  to  hear  and  determine  any  suit,  has,  by  the  com- 
^V  ^     mon  'law,  inherent  power  to  call  for  all  adequate  proofs  of  the 
<^    I^s4acts  in  controversy,  and,  to  that  end,  to  summon  and  compel 
*    the  attendance  of  witnesses  before  it.^     The  ordinary  summons  is 
a  writ  of  subpoena,  which  is  a  judicial  writ,  directed  to  the  witness, 
\^  »,.    commanding  him  to  appear  at  the  court,  to  testify  what  he  knows 
y    in  the  cause  therein  described,  pending  in  such  court,  under  a 
certain  penalty  mentioned  in  the  writ.     If  the  witness  is  expected 
to  produce  any  books  or  jiapers  in  his  possession,  a  clause  to  that 
effect  J.S  inserted  in  the  writ,  which  is  then  termed  a  subpoena  duces 
tecum^    The  writ  of  subpoena  suffices  for  only  one  sitting,  or  term 
of  the  court.     If  the  cause  is  made  a  remanet,  or  is  postponed  by 


^ 


V 


4 


1  [The  House  of  Eepresentatives  of  describing  with  precision  the  papers  and 
Massachusetts  has  power  to  compel  wit-  documents  to  be  produced),  "together 
nesses  to  attend  and  testify  before  the  witli  all  copies,  drafts,  and  vouchers,  re- 
House  or  one  of  its  committees  ;  and  the  ,  luting  to  the  said  documents,  and  all  other 
refusal  of  a  witness  to  apjiear  is  a  con-  documents,  letters,  and  paper  writings 
tempt  for  winch  the  House  may  cause  whatsoever,  that  can  or  may  afibrd  any 
him  to  be  arrested,  and  hnnight  before  information  or  evidence  in  said  cause ; 
the  House ;  and  for  a  refusal  to  testify  he  then  and  there  to  testify  and  show  all  and 
luay  be  imprisoned.  Burnham  v.  Morris-  singular  those  things,  which  you  (or  either 
sey,  14  Ciray,  'J2t).]  i  of  yon)  know,  or  the  said  documents,  let- 

■■^  This  additional  clause  is  to  the  fol-  '  ters,  or  instruments  in  writing  do  import 
lowing  effect:  "And,  also,  tliat  you  do  of  and  concerning  the  said  cause  now  de- 
diligently  and  carefidly  search  for,  exam-  jiending.  And  tins  you  (or  any  of  you) 
ine,  and  inquire  after,  and  bring  witli  you  shall  in  no  wise  omit,"  &c.  3  Chitty's 
and  produce,  at  the  time  and  ])lace  afore-  ,  Gen.  Practice,  830,  n. ;  Amey  i'.  Long,  y 
/^  said,  a  bill  of  exchange,  dated,"  &c.  (here  jEast,  473.  .  ..  /  „._  > 


CHAP.  I.]  ATTENDANCE   OP   WITNESSES.  361 

adjournment  to  another  term  or  session,  the  witness  must  be  sum- 
moned anew.  The  manner  of  serving  the  subpoena  being  in  general 
regulated  by  statutes,  or  rules  of  court,  which  in  the  different 
states  of  the  Union  are  not  perfectly  similar,  any  further  pursuit 
of  this  part  of  tlie  subject  would  not  comport  with  the  desigii 
of  this  work.i  And  the  same  observation  may  be  apijlied,  once 
for  all,  to  all  points  of  practice  in  matters  of  evidence,  which  are 
reguLated  by  local  law. 

§  310.  In  order  to  secure  the  attendance  of  a  witness  in  civil 
cases,  it  is  requisite  by  stat.  5  Eliz.  c.  9,  that  he  "  have  tendered 
to  him,  according  to  his  countenance  or  calling,  his  reasonable 
charges."  Under  this  statute  it  is  held  necessary,  in  England, 
that  his  reasonable  expenses,  for  going  to  and  returning  from  the 
trial,  and  for  his  reasonable  stay  at  the  place,  be  tendered  to  him 
at  the  time  of  serving  the  subpoena  ;  and,  if  he  appears,  he  is  not 
bound  to  give  evidence  until  such  charges  are  actually  paid  or 
tendered,-  unless  he  resides,  and  is  summoned  to  testify,  within 
the  weekly  bills  of  mortality ;  in  which  case  it  is  usual  to  leave 
a  shilling  with  him,  upon  the  delivery  of  the  subpoena  ticket. 
These  expenses  of  a  witness  are  allowed  pursuant  to  a  scale, 
graduated  according  to  his  situation  in  life.^  But  in  tliis  country 
these  reasonable  expenses  are  settled  by  statutes,  at  a  fixed  sum 
for  each  day's  actual  attendance,  and  for  each  mile's  travel,  from 
the  residence  of  the  witness'^  to  the  place  of  trial  and  back,  without 

1  The  English  practice  is  stated  in  2  Bing.  725 ;  Id.  729,  s.  c. ;  Collins  v.  Gode- 
Tidd's  Prac.  (9th  edit.)  805-809  ;  1  Stark,  froy,  1  B.  &  Ad.  950.  There  is  also  a  dis- 
Evid.  77  et  s<=q. ;  o  Chitty's  Gen.  Prac.  tinction  between  a  witness  to  tacts,  and  a 
828-834 ;  2  Phil.  Evid.  870-392.  The  witness  selected  by  a  party  to  give  liis 
American  practice,  in  its  principal  fea-  opinion  on  a  snbject  with  which  he  is  pe- 
tures,  may  be  collected  trora  the  cases  culiariy  conversant  fi-om  liis  employment 
cited  in  the  United  States  Digest,  vol.  o,  in  life.  The  former  is  bound,  as  a  matter 
tit.  Witness,  II.;  Id.  Suppt.  vol.  2,  tit.  of  public  duty,  to  testity  to  facts  witliin 
Witness,  L;  1  Paine  &  I) uer's  Practice,  his  knowledge.  The  latter  is  under  no 
Part  2,  ch.  7,  §  4;  Conklin's  Practice,  such  obligation  ;  and  tlie  party  who  selects 
Part  2,  ch.  2,  §  7,  pp.  253-293;  Howe's  him  must  pay  him  for  his  time,  before  he 
Practice,  228-230.  will  be   compelled   to   testify.     Webb  v. 

2  Newton  v.  Harland,  9  Dowl.  16.  Page,  1  Car.  &  Kir.  23. 

3  2  Phil.  Evid.  pp.  375,  376 ;  2  Tidd's  *  It  has  been  held,  tliat,  for  witnesses 
Pr.  (9th  edit.)  p.  806.  An  additional  com-  brought  from  another  state,  no  fees  can 
pensation,  for  loss  of  time,  was  formerly  be  taxed  tor  travel,  beyoml  the  line  of  the 
allowed  to  metlical  men  and  attorneys  ;  stale  in  which  the  cause  is  tried.  How- 
but  that  rule  is  now  exph)ded.  But  area-  land  v.  Lenox,  4  Johns.  311  ;  Newman  r. 
sonable  compensation  paid  to  a  foreign  The  Atlas  Ins.  Co.  Philliii's  Dig.  113; 
witness,  who  refused  to  come  without  it,  Melvin  r.  Whiting,  13  I'ick.  190;  White 
and  whose  attendance  was  essential  in  the  v.  .ludd,  1  Met.  293.  But  the  reasons  for 
cause,  will  in  general  be  allowed  and  taxed  these  decisions  are  not  stated,  nor  are 
against  the  losing  party.  See  Lonergan  they  very  easily  perceived.  In  England,  ■ 
V.   The   Royal   Exchange    Assurance,   7  the  early  practice  was  to  allow  all  the  ex- 

YOL.   I.  31 


302  LAW   OF   EVIDENCE.  [PART   III. 

regard  to  tlic  cin})loyment  of  the  witness,  or  his  rank  in  life.  The 
sums  paid  are  not  alike  in  all  the  states,  but  the  principle  is 
believed  to  be  everywhere  the  same.  In  some  states,  it  is  sufficient 
to  tender  to  the  witness  his  fees  for  travel,  from  his  home  to  the 
place  of  trial,  and  one  day's  attendance,  in  order  to  compel  him 
to  appear  upon  the  summons;  but  in  others,  the  tender  must 
include  his  fees  for  travel  in  retiirnhig.i  Neither  is  the  practice 
unii'oi-m  in  this  country,  as  to  the  question  whether  the  witness, 
having  appeared,  is  bound  to  attend  from  day  to  day,  until  the 
trial  is  closed,  without  the  payment  of  his  daily  fees ;  but  the 
better  opinion  seems  to  be,  that,  without  payment  of  his  fees,  he 
is  not  bound  to  submit  to  an  examination.^ 

§  311.  In  criminal  cases,  no  tender  of  fees  is  in  general  neces- 
sary, on  the  part  of  the  government,  in  order  to  compel  its  wit- 
nesses to  attend  ;  it  being  the  duty  of  every  citizen  to  obey  a  call 
of  that  description,  and  it  being  also  a  case,  in  which  he  is  himself, 
in  some  sense,  a  party .^  But  his  fees  will  in  general  be  finally 
paid  from  the  public  treasury.  In  all  such  cases,  the  accused  is 
entitled  to  have  compulsory  process  for  obtaining  witnesses  in  his 
favor.*  The  payment  or  tender  of  fees,  however,  is  not  necessary 
in  any  case,  in  order  to  secure  the  attendance  of  the  witness,  if 
he  has  waived  it ;  the  provision  being  solely  for  his  benefit.^     But 

pcnses  of  l)riiip;inri;ovcr  foreign  witnesses,  Bliss  v.  Brainard,  42  N.  H.  255,  it  is  said 

incurred  in  goodi  faith ;  but  a  large  sum  the  witness,  at  the  end  of  each  day,  has 

being-  claimed  in  one  case,  an  order  was  the  right  to  return  home,  if  his  fees  for 

maile  in  the  Common  Pleas,  that  no  costs  the  next  day  are  not  paid  upon  applica- 

shoiUd  be  allowed,  except  while  the  wit-  tion  to  the  party  summoning  him  or  to 

ncss   was    within    the    reach   of  process,  his  attorney.] 

Hagedorn  v.  Allnut,  8  Taunt.  o7U.  This  ^  In  New  York,  witnesses  are  bound  to 
order  was  soon  afterwards  rescinded,  and  attend  for  the  state,  in  all  criminal  prose- 
tlie  old  practice  restored.  Cotton  v.  Witt,  cntions,  and  for  the  defendant,  in  any  in- 
4  Taunt.  55.  Since  which  the  uniform  dictment,  without  any  tender  or  payment 
course,  both  in  that  court  and  in  B.  B.,  of  fees.  2  Bev.  Stat.  p.  72U,  §  G5;  Cham- 
has  been  to  allow  all  the  actual  expenses  berlain's  case,  4  Cowen,  49.  In  Pennsyl- 
of  procuring  the  attendance  of  the  witness,  van'ia,  the  person  accused  may  have  process 
and  of  his  return.  Tremain  y.  Barrett,  6  forhis  witnesses  before  indictment.  United 
Taunt.  88 ;  2  Tidd's  Br.  814 ;  2  Bhil.  States  v.  Moore,  Wallace's  B.  23.  In 
Evid.  370  (Uth  edit).  And  see  Ilutchins  Miixaachnsttts,  in  capital  cases,  the  prisoner 
V.  The  State,  8  Mis.  288.  [See  also  Gun-  may  have  process  to  bring  in  his  witnesses 
nison  r.  (iuuiiison,  41  N.  II.  121.]  at    the    expense   of  the   commonwealth. 

1  The  iaiicr  is  tlic  rale  in  the  courts  Williams's  case,  13  Mass.  501.     In  Eng- 

of-ikc  tinted  Stales.    See  Conlilin's  Brae-  hind,  the  court   has  power  to  order  the 

tice,  pp.  20-'),  2GG;  LL.  U.  S.  17'J'J,  ch.  125  payment  of   fees    to    witnesses    for    the 

[19],  §  6,  vol.  1,  p.  571  (Story's  edit.),  [1  crown,   in   all  cases   of  felony;    and,   in 

U.  S.   Stat,   at    Large  (L.   &  B.'s  edit.),  some   cases,  to  allow  further   conipensa- 

p.  62G.]  tion.     Stat.  18  Geo.  III.,  ch.  lU  ;  Bhil.  & 

■^  IBaine  &I)uer's  Practice,  497;  Hal-  Am.  on   Evid.   788,  789;   2  Phil.  Evid. 

lett  V.  Mears,  14  East,  15,  16,  note  (a);  380;  1  Stark.  Evid.  82,  83. 
iSlattocks    V.    Wheaton,    10    Verm.   493.  *  Const.  U.  S.  Amendments,  art.  6. 

[*ln  a  recent  case  in  New  Ilampsliire,         ^  Goodwin  u.  West,  Cro.  Car.  522,  540. 


CHAP.  I.]  ATTENDANCE   OP   WITNESSES.  363 

it  is  necessary  in  all  civil  cases,  that  the  witness  be  summoned 
in  order  to  compel  him  to  testify ;  for,  otherwise,  he  is  not  obliged 
to  answer  the  call,  though  he  be  present  in  court ;  but  in  criminal 
cases,  a  person  present  in  court,  though  he  have  not  been  sum- 
moned, is  bound  to  answer.^  xind  where,  in  criminal  cases,  the* 
witnesses  for  the  prosecution  are  bound  to  attend  upon  the  sum- 
mons, without  the  payment  or  tender  of  fees,  if,  from  poverty,  the 
witness  cannot  obey  the  summons,  he  will  not,  as  it  seems,  be 
guilty  of  a  contempt.^ 

§  312.  If  a  witness  is  in  custody,  or  is  in  the  military  or  naval 
service,  and  therefore  is  not  at  liberty  to  attend  witliout  leave  of 
his  superior  officer,  which  he  cannot  obtain,  he  may  be  brought 
into  court  to  testify  by  a  writ  of  habeas  corpus  ad  testificandum. 
This  writ  is  grantable  at  discretion,  on  motion  in  open  court,  or 
by  any  judge,  at  chambers,  who  has  general  authority  to  issue 
a  writ  of  habeas  corpus.  The  application,  in  civil  cases,  is  made 
upon  affidavit,  stating  the  nature  of  the  suit,  and  the  materiality 
of  the  testimony,  as  the  party  is  advised  by  his  counsel  and  verily 
believes,  together  with  the  fact  and  general  circumstances  of  re- 
.  straint,  which  call  for  the  issuing  of  the  writ ;  and  if  he  is  not 
actually  a  prisoner,  it  should  state  his  willingness  to  attend.^  In 
criminal  cases,  no  affidavit  is  deemed  necessary  on  the  part  of  the 
prosecuting  attorney.  The  writ  is  left  with  the  sheriff,  if  the  wit- 
ness is  in  custody ;  but  if  he  is  in  the  military  or  naval  service, 
it  is  left  with  the  officer  in  immediate  command ;  to  be  served, 
obeyed,  and  returned,  like  any  other  writ  of  habeas  corpus.^  If 
the  witness  is  a  prisoner  of  war,  ho  cannot  be  brought  up  but  by 
an  order  from  the  Secretary  of  State ;  but  a  rule  may  be  granted 
on  the  adverse  party,  to  show  cause  why  he  should  not  consent 
either  to  admit  the  fact,  or  that  the  prisoner  should  be  examined 
upon  interrogatories.^ 

§  313.  There  is  another  method  by  which  the  attendance  of 
witnesses  for  the  government,  in  criminal  cases,  is  enforced, 
namely,  by  recognizance.  This  is  the  usual  course  upon  all  exami- 
nations, where  the  party  accused  is  committed,  or  is  bound  over 
for  trial.     And  any  witness,  whom  the  magistrate  may  order  to 

1  Eex  V.  Sadler,  4  C.  &  P.  218  ;  Black-         *  2  Phil.  Evid.  374,  375 ;  Conklin's  Pr. 

burne   v.  Ilargreave,  2  Lewin,   Cr.  Cas.  2G4 ;  1  Paine  &  Duer's  Pr.  603,  504;  2 

259 ;  [Robinson  v.  Trull,  4  Cush.  249.]  Tidd's  Pr.  «09. 

-  2  Phil.  Evid.  379,  383.  ^  Eurly  v.  Newnham,  2  Doug.  419. 

8  Rex  V.  Roddam,  Cowp.  672. 


364  LAW   OF   EVIDENCE.  [PART   III. 

recognize  for  his  own  appearance  at  the  trial,  if  he  refuses  so  to 
do,  may  be  committed.  Sureties  are  not  usually  demanded,  though 
they  may  be  required,  at  the  magistrate's  discretion ;  but  if  they 
cannot  be  obtained  by  the  witness,  when  required,  his  own  recog- 
nizance must  be  takcn.^ 

§  314.  The  service  of  a  subpoena  upon  a  witness  ought  always 
to  be  made  in  a  reasonable  time  before  trial,  to  enable  him  to  put 
his  affairs  in  such  order,  that  his  attendance  upon  the  court  may 
be  as  little  detrimental  as  possible  to  his  interest.^  On  this  prin- 
ciple, a  summons  in  the  morning  to  attend  in  the  afternoon  of 
the  same  day  has  been  held  insufficient,  though  the  witness  lived 
in  the  same  town,  and  very  near  to  the  place  of  trial.  In  the 
United  States,  the  reasonableness  of  the  time  is  generally  fixed  by 
statute,  requiring  an  allowance  of  one  day  for  every  certain  num- 
ber of  miles  distance  from  the  witness's  residence  to  the  place 
of  trial ;  and  this  is  usually  twenty  miles.  But  at  least  one  day's 
notice  is  deemed  necessary,  however  inconsiderable  the  distance 
may  be.^ 

§  315.  As  to  the  manner  of  service,  in  order  to  compel  the  attend- 
ance of  the  witness,  it  should  be  personal,  since,  otherwise,  he 
cannot  be  chargeable  with  a  contempt  in  not  appearing  upon  the 
sununons.'^  The  subpania  is  plainly  of  no  force  beyond  the  juris- 
dictional limits  of  the  court  in  which  the  action  is  pending,  and 
from  which  it  issued ;  but  the  courts  of  the  United  States,  sitting 
in  any  district,  are  empowered  by  statute,^  to  send  subpoenas  for 
witnesses,  into  any  other  district,  provided  that,  in  civil  causes, 


1  2  Hale,  P.  C.  282 ;  Bennett  v.  Wat-  as  in  England,  a  subpoena  ticket,  which  is 
son,  3  M.  &  S.  1 ;  1  Stark.  Evid.  82 ;  Ros-  a  copy  of  the  writ,  or  more  properly  a 
coe's  Crim.  Evid.  p.  87  ;  Evans  v.  Kees,  statement  of  its  substance,  duly  certified, 
12  Ad.  &  El.  55.  [In  the  United  States  is  delivered  to  the  witness,  at  the  same 
courts,  and,  generally  in  the  several  time  that  the  writ  is  shown  to  him.  1 
states,  authority  is  given  by  statute,  to  Paine  &  Duer's  Pr.  4'Jti ;  1  Tidd's  Pr. 
commit  a  witness  who  refuses  or  fails  to  80G;  1  Stark.  Ev.  77;  Phil.  &  Am.  on 
give  the  recognizance  required  by  the  Evid.  781,  782;  2  Phil.  Evid.  373.  But 
court  or  magistrate  ;  and  tlie  practice  is  in  the  general  practice  is  believed  to  be, 
accordance  with  the  authority,  and  an  al-  either  to  show  the  subpa-na  to  the  wit- 
lowance  is  made  to  the  witnesses  for  the  ness,  or  to  serve  him  witli  an  attested 
time  that  they  are  so  detained.     Laws  U.  copy.     The  writ,  being   directed   to   the 

5.  1816,  ch.  98,  §  7  (U  Stat,  at  Large,  L.  witness  himself,  may  be  shown  or  deliv- 

6,  B.'s  edit.),  73.]  ered  to  liim  by  a  private  person,  and  tiie 

2  Hammond  /.  Stewart,  1  Stra.  510.  service  proved  by  atfidavit;  or  it  may  be 

3  Sims  r.  Kitclicn,  5  Esp.  4(') ;  2  Tidd's  served  by  the  sheriff's  officer,  and  proved 
Pr.  8Ut) ;  3  Chitty's  Gen.  I'r.  801 ;  1  Paine  by  his  otlicial  return. 

&  Duer's  Pr.  11)7 ;   [Scammon  v.  Scam-         ^  Stat.  17'J3,  ch.  66,  [22]  §  6 ;  1  LL.  U. 

mon,  33  N.  H.  52.]  S.  p.  312  (Story's  edit.),  |1  tl.  S.  Stats,  at 

*  In  some  of  the  United  States,  as  well  Large  (L.  &  B.'s  edit.),  335.] 


CHAP.  I.]  ATTENDANCE   OF  WITNESSES.  365 

the  witness  do  not  live  at  a  greater  distance  than  one  hundred 
miles  from  the  place  of  trial.^ 

§  316.  Witnesses  as  well  as  parties  are  protected  from  arrest 
while  going  to  the  place  of  trial,  while  attending  there,  for  the 
purpose  of  testifying  in  the  cause,  and  while  returning  home, 
eundo,  morando,  et  redeundo?  A  subpoena  is  not  necessary  to'  pro- 
tection, if  the  witness  have  consented  to  go  without  one ;  nor  is 
a  writ  of  protection  essential  for  this  purpose ;  its  principal  use 
being  to  prevent  the  trouble  of  an  arrest,  and  an  application  for 
discharge,  by  showing  it  to  the  arresting  officer ;  and  sometimes, 
especially  where  a  writ  of  protection  is  shown,  to  subject  the 
officer  to  punishment,  for  contempt.^  Preventing,  or  using  means 
to  prevent  a  witness  from  attending  court,  who  has  been  duly 
summoned,  is  also  punishable  as  a  contempt  of  court.*  On  the 
same  principle,  it  is  deemed  as  a  contempt  to  serve  process  upon 
a  witness,  even  by  summons,  if  it  be  done  in  the  immediate  or 
constructive  presence  of  the  court  iipon  which  he  is  attending ;  ^ 
though  any  service  elsewhere  without  personal  restraint,  it  seems, 
is  good.  But  this  freedom  from  arrest  is  a  personal  privilege, 
which  the  party  may  waive ;  and  if  he  willingly  submits  himself 
to  the  custody  of  the  officer,  he  cannot  afterwards  object  to  the 
imprisonment,  as  unlawful.^  The  privilege  of  exemption  from, 
arrest  does  not  extend  through  the  whole  sitting  or  term  of  the 
court,  at  which  the  witness  is  summoned  to  attend ;  but  it  con- 
tinues during  the  space  of  time  necessarily  and  reasonably  em- 
ployed in  going  to  the  place  of  trial,  staying  there  until  the  trial 
is  ended,  and  returning  home  again.     In  making  this  allowance 

1  In  most  of  the  states,  there  are  pro-  chided),  provided  they  came  bond  fide." 

visions  by  statute,  for  talking  the  deposi-  Randall  v.   Gurney,    8  B.    &    Aid.   252 ; 

tions  of  witnesses,  who  live  more  than  a  Hurst's  case,  4  Dal.  387.     It  extends  to 

specified  number  of  miles  from  the  place  a  witness  coming  from  abroad,  without  a 

of  trial.     But  these  regulations  are  made  subpoena.     1  Tidd's  Pr.  l'J5,  1U6 ;  Nori'is 

for  the  convenience  of  the  parties,  and  do  v.  Beach,  2  Johns.  294. 

not  absolve  the  witness  from  the  obHga-  ^  Meekins    v.    Smith,    1    H.   Bl.   636 ; 

tion  of  personal  attendance  at  the  court,  Arding  v.  Plower,  8  T.  R.  536 ;  Norris  v. 

at  whatever  distance  it  be  holden,  if  he  Beach,   2   Johns.  2U4 ;    United    States  v. 

resides  within  its  jurisdiction,  and  is  duly  Edme,  9  S.  &  R.  147 ;  Sandford  v.  Chase, 

summoned.     In  G'eon/id^  the   depositions  3  Cowen,  381 ;   Bours  v.  Tuckerman,    7 

of  females  mav  be  taken  in  all  civil  cases.  Johns.  538.     [But  see  ex  parte  McNeil,  3 

Rev.  St.  1815' (by  Hotchkiss),  p.  586.  Mass.  288,  and  6  Mass.  264,  contra.] 

^  This  rule  of  protection  was  laid  down,  *  Commonwealth   v.  Freely,   2   Virg. 

upon  deliberation,  in  the  case  of  Meekins  Cas.  1. 

?-.  Smith,  1  H.  Bl.  636,  as  extending  to  °  Cole    v.    Hawkins,    Andrews,    275; 

"  all  persons  who  had  relation  to  a  suit,  Bhght  v.  Fisher,  1  Peters,  C.  C.  R.  41 ; 

which  called  for  their  attendance,  whether  Miles  v.  JMcCullough,  1  Binn.  77. 

they  were  compelled  to  attend  by  process  **  Brown  v.  Getchell,  11  Mass.  11,  14; 

or  not  (in  which  number  bail  "were   in-  Geyer  v.  Irwin,  4  Dall.  107. 

31* 


36G  LAW  OF  EVIDENCE.  [PART  III. 

of  time,  tlic  courts  are  disposed  to  be  liberal ;  but  unreasonable 
luitering  and  deviation  from  the  way  will  not  be  permitted.^  But 
a  witness  is  not  privileged  from  arrest  by  his  bail,  on  his  return 
from  giving  evidence ;  and  if  he  has  absconded  from  his  bail,  he 
may  be  retaken,  even  during  his  attendance  at  court.^ 

§  817.  This  privilege  is  granted  in  all  cases  where  the  attendance 
of  the  party  or  witness  is  given  in  any  matter  jjcuding  before  a 
lawful  tribunal  having  jurisdiction  of  the  cause.  Thus  it  has  been 
extended  to  a  party  attending  on  an  arbitration,  under  a  rule  of 
court ;  ^  or  on  the  execution  of  a  writ  of  inquiry  ;  ^  to  a  bankrupt 
and  witnesses,  attending  before  the  commissioners,  on  notice ;  ^ 
and  to  a  witness  attending  before  a  magistrate,  to  give  his  deposi- 
tion under  an  order  of  court.^ 

§  318.  If  a  person  thus  clearly  entitled  to  privilege  is  unlaw- 
fully arrested,  the  court,  in  which  the  cause  is  to  be,  or  has  been, 
tried,  if  it  have  power,  will  discharge  him  upon  motion;  and  not 
put  him  to  the  necessity  of  suiiig  out  process  for  that  purpose,  or 
of  filing  common  bail.  But  otherwise,  and  where  the  question  of 
privilege  is  doubtful,  the  court  will  not  discharge  him  out  of  cus- 
tody upon  motion,  but  will  leave  him  to  his  remedy  by  writ ;  and 
in  either  case  the  trial  will  l3e  put  off  until  he  is  released.'' 

§  319.  Where  a  witness  has  been  duly  summoned,  and  his  fees 
paid  or  tendered,  or  the  payment  or  tender  waived,  if  he  wilfully 
neglects  to  appear,  he  is  guilty  of  a  conteinpt  of  the  process  of 
court,  and  may  be  proceeded  against  by  an  attachment.^  It  has 
sometimes  been  held  necessary  that  the  cause  should  be  called  on 
for  trial,  the  jury  sworn,  and  the  witness  called  to  testify ;  ^  but 
the  better  opinion  is,  that  the  witness  is  to  be  deemed  guilty  of 


1  Meekins  v.  Smith,  1  II.  Bl.  G36  ;  Uan-  on  estate  of  insolvent  person  deceased,  is 

dall  ?J.  Gurney,  3  B.  &  Aid. '252;  Willing-  cxcni])t    from    arrest    on    civil    process, 

ham  V.  Matthews,  2  Marsh.  57  ;  Lightfoot  Wood  v.  Neale,  5  Gray,  538.] 
V.  Cameron,  2  W.  Bl.  Ill;) ;  Selby  v.  Hills,  '  i  Tidd's  Pr.  197,  216 ;  2  Paine  &  Du- 

8  Bing.  IWJ ;  Ihirst's  case,  4  Dall.  387;  er's  Pr.  G,  10;  lim-st's  case,  4  Dall.  387; 

Smythe  v.  lianks,  4  Dall.  329 ;  1  Tidd's  ex  parte  Edme,  9  S.  &  R.  147 ;  Sanford  v. 

Pr.  195,  191'),  197;  Phil.  &  Am.  on  Evid.  Chase,  3  Cowcn,  381;  [Seaver  v.  Kobiu- 

782,  783 ;  2  Phil.  Evid.  374.  son,  3  Duer,  622.] 

'^  1  Tidd's  Pr.  197 ;  ex  parte  Lyne,  3         ^  Where   two   subpoenas  were  served 

Stark.  R.  470.  the  same  day,  on  a  witness,  requiring  his 

'^  Spence  v.  Stuart,  3  East,  89 ;  Sanford  attendance  at  dilU'rent  places,  distant  t'roin 

V.  Chase,  3  Cowen,  381.  each   other,  it  was   hold   that  he   njight 

*  Walters  v.  Kees,  4  J.  B.  Moore,  34.  make  his  election  which  he  will  obey. 

6  Arding  v.  Flower,  8  T.  11.  634;  1  Icehour  v.  Martin,  Busbee,  Law,  N.  C. 

Tidd's  Pr.  197.  478.] 

«  Ex  parte  Edme,  9  S.  &  R.  147.     [*  So         »  Bland  v.  Swaflford,  Peake's  Cas.  60. 
one  attending  meeting  of  commissioners 


CHAP.  I.] 


ATTENDANCE   OF   WITNESSES. 


567 


contempt,  whenever  it  is  distinctly  shown  that  he  is  absent  from 
court  witli  intent  to  disoljey  the  writ  of  snhpoena ;  and  that  the 
calling  of  him  in  court  is  of  no  other  use  than  to  obtain  clear  evi- 
dence of  his  having  neglected  to  appear ;  but  that  is  not  necessary, 
if  it  can  be  clearly  shown  by  other  means  that  he  has  disobeyed 
the  order  of  court.^  An  attachment  for  contempt  proceeds  not 
upon  the  ground  of  any  damage  sustained  by  an  individual,  but  is 
instituted  to  vindicate  the  dignity  of  the  court  ;2  and  it  is  said, 
that  it  must  be  a  perfectly  clear  case  to  call  for  the  exercise  of 
this  extraordinary  jurisdiction  .^  The  motion  for  an  attachment 
should  therefore  be  brought  forward  as  soon  as  possible,  and  the 
party  applying  must  show,  by  affidavits  or  otherwise,  that  the 
subjyoena  was  seasonably  and  personally  served  on  the  witness, 
that  his  fees  were  paid  or  tendered,  or  the  tender  expressly 
waived,  and  that  every  thing  has  been  done  which  was  necessary 
to  call  for  his  attendance.*  But  if  it  appears  that  the  testimony 
of  the  witness  could  not  have  been  material,  the  rule  for  an  at- 
tachment will  not  be  granted.^  If  a  case  of  palpable  contempt  is 
shown,  such  as  an  express  and  positive  refusal  to  attend,  the 
court  will  grant  an  attachment  in  the  first  instance ;  otherwise, 
the  usual  course  is  to  grant  a  rule  to  show  cause.^  It  is  hardly 
necessary  to  add,  that  if  a  witness,  being  present  in  court,  refuses 
to  be  sworn  or  to  testify,  he  is  guilty  of  contempt.     In  all  cases 


1  Barrow  v.  Humphreys,  3  B.  &  Aid. 
598 ;  2  Tidd's  Pr.  808. 

2  3  B.  &  Aid.  600,  per  Best,  J.  Where 
a  justice  of  the  peace  has  power  to  bind 
a  witness  by  recognizance  to  appear  at  a 
higher  court,  he  may  compel  his  attend- 
ance before  himself  for  that  purpose  by 
attachment.  Bennett  v.  Watson,  3  M.  & 
S.  1 ;  2  Hale,  P.  C.  282 ;  Evans  v.  Eees, 
12  Ad.  &  El.  55  ;  supra,  §  313. 

3  Home  V.  Smith,  6  Taunt.  10,  11 ; 
Garden  v.  Creswell,  2  M.  &  W.  319 ;  Kex 
V.  Ld.  J.  Russell,  7  Dowl.  693. 

*  2  Tidd's  Pr.  807,  808;  Garden  v. 
Creswell,  2  M.  &  W.  319 ;  1  Paine  &  Du- 
er's  Pr.  499,  500 ;  Conkling's  Pr.  2G5. 

^  Dicas  V.  Lawson,  1  Cr.  M.  &  11.  934. 
[The  court  will  not  compel  the  attendance 
of  an  interpreter  or  expert,  who  has  neg- 
lected to  obey  a  suhpa-na,  imless  in  case  of 
necessity.  In  the  matter  of  Roelker, 
Sprague's  Decisions,  276.] 

6  Anon.  Salk.  84;  4  Bi.  Comm.  286,  287 ; 
Rex  V.  Jones,  1  Stra.  185 ;  Jackson  v. 
Mann,  2  Gaines,  92;  Andrews  i).  An- 
drews,  2  Johns.    Gas.   109 ;    Thomas    v. 


Cummins,  1  Yates,  1 ;  Conkling's  Pr. 
265 ;  1  Paine  &  Duer's  Pr.  500 ;  2  Tidd's 
Pr.  807,  808.  The  party  injured  by  the 
non-attendance  of  a  witness  lias  also  his 
remedy,  by  action  on  the  case  for  dam- 
ages, at  common  law  ;  and  a  further  reme- 
dy, by  action  of  debt,  is  given  by  Stat.  5 
Eliz.  ch.  9 ;  but  these  are  deemed  foreign 
to  the  object  of  this  work.  [In  Massachu- 
setts,  a  statute  (Rev.  Stat.  ch.  94,  §  4) 
gives  tlie  aggrieved  part}-  an  action  against 
a  person  duly  summoned  and  obliged  to 
attend  as  a  witness,  if  lie  tiiils  to  do  so,  for 
all  damages  occasioned  by  such  failure. 
To  maintain  such  action,  the  plaintiff 
must  prove  that  the  witness  was  duly 
summoned,  and  that  his  fees  for  travel 
and  attendance  were  duly  paid  or  ten- 
dered to  him,  according  to  the  statute 
requisition ;  and  it  is  not  sufficient  in  sucli 
case,  to  prove  a  waiver  on  the  part  of  the 
witness,  of  his  right  to  be  served  with 
suumions  and  to  liave  his  fees  tendered 
him.  Robinson  r.  Trull,  4  Gush.  249. 
See  also  Lane  v.  Cole,  12  Barb.  268,  which 
was   an  action    by  au    aggrieved    party 


308  LAW   OP   EVIDENCE.  [PART   III. 

of  contempt,  the  puiii.slimcnt  is  by  fine  and  imprisonment,  at  the 
discretion  of  the  court.^ 

§  320.  If  the  witness  resides  abroad,  out  of  the  jurisdiction,  and 
refuses  to  attend,  or  is  sick  and  iinahle  to  attend,  his  testimony  can 
be  obtained  only  by  taking  his  deposition  before  a  magistrate,  or 
before  a  commissioner  duly  authorized  by  an  order  of  the  court 
where  the  cause  is  pending ;  and  if  the  commissioner  is  not  a 
judge  or  magistrate,  it  is  usual  to  require  that  he  be  first  sworn.^ 
This  method  of  obtaining  testimony  from  witnesses,  in  a  foreign 
country,  has  always  been  familiar  in  the  courts  of  admiralty ;  but 
it  is  also  deemed  to  be  within  the  inherent  powers  of  all  courts  of 
justice.  For,  by  the  law  of  nations,  courts  of  justice,  of  different 
countries,  are  bound  mutually  to  aid  and  assist  each  other,  for  the 
furtherance  of  justice  ;  and  lience,  when  the  testimony  of  a  foreign 
witness  is  necessary,  the  court  before  which  the  action  is  pending, 
may  send  to  the  court,  within  whose  jurisdiction  the  witness  re- 
sides, a  writ,  either  patent  or  close,  usually  termed  a  letter  roga- 
tory, or  a  commission  sid)  niutuce  vicissitudinis  obtentu  ae  in  juris 
subsidium,  from  those  words  contained  in  it.  By  this  instrument, 
the  court  abroad  is  informed  of  tlie  pendency  of  the  cause,  and  the 
names  of  the  foreign  witnesses,  and  is  requested  to  cause  their 
depositions  to  be  taken  in  due  course  of  law,  for  the  furtherance 
of  justice ;  with  an  offer,  on  the  part  of  the  tribunal  making  the 
request,  to  do  the  like  for  the  other,  in  a  similar  case.  The  writ 
or  commission  is  usually  accompanied  by  interrogatories,  filed  by 
the  parties  on  each  side,  to  which  the  answers  of  the  witnesses 
are  desired.  The  commission  is  executed  by  the  judge,  who  re- 
ceives it,  either  by  calling  the  witness  before  himself,  or  by  the 
intervention  of  a  commissioner  for  that  purpose ;  and  the  original 
answers,  duly  signed  and  sworn  to  by  the  deponent,  and  properly 
authenticated,  are  returned  with  the  commission  to  the  court  from 
which  it  issued.^     The  court  of  chancery  has  always  freely  exer- 

against  the  defendant  who  was  summoned  record  on  account  of  the  absence  of  the  wit- 
to  produce  certahi  papers,  whicli  he  did  ness.     Yeatnian  v.  Dempsey,  6  Jur.  N.  s. 
not  produce,  and  for  want  of  whicli  the  778 ;  s.  c.  7  C.  B.,  n.  s.  628.] 
plaintiff  was  nonsuited.     Knott  v.  Smith,  i  4  Bl.  Comm.  286,  287 ;  Rex  r.  Beard- 
2  Sneed,  244 ;  State  v.  Dili,  lb.  414;  Nel-  more,  2  Burr.  792. 

son  V.  Ewell,  2  Swan,  271.|  [*And  an  -  l^)nsford  v.  O'Connor,  5  M.  &  W. 
action  will  lie  upon  a  contract  to  attend  673;  Clay  v.  Stephenson,  3  Ad.  &  El.  807. 
court  and  give  testimony,  although  there  '"^  See  Clerk's  Praxis,  tit.  27 ;  Cunning- 
be  no  allegati(jn  that  the  plaintiff  had  a  ham  v.  Otis,  1  Gal.  liJG;  Hall's  Adm.  Pr. 
good  cau.se  of  action,  but  only  that  the  part  2,  tit.  19,  cum.  add.  and  tit.  27,  cum. 
party   was  compelled    to    withdraw   the  add.  pp.  37,  38,  55-60;  (Jughton's  Ordo 


CHAP.  I.]  ATTENDANCE   OF   WITNESSES.  369 

ciscd  this  power,  by  a  commission,  cither  directed  to  foreign 
magistrates,  by  their  official  designation,  or,  more  usually,  to  indi- 
viduals by  name ;  which  latter  course,  the  peculiar  nature  of  its 
jurisdiction  and  proceedings  enables  it  to  induce  the  parties  to 
adopt,  by  consent,  where  any  doubt  exists  as  to  its  inherent  au>^ 
thority.  The  courts  of  common  law  in  England  seem  not  to  have^ 
asserted  this  power  in  a  direct  manner,  and  of  their  own  authority ; 
but  have  been  in  the  habit  of  using  indirect  means,  to  coerce  the 
adverse  party  into  a  consent  to  the  examination  of  witnesses,  who 
were  absent  in  foreign  countries,  under  a  commission  for  that  piir- 
pose.  These  means  of  coercion  were  various  ;  such  as  putting  oiF 
the  trial,  or  refusing  to  enter  judgment,  as  in  case  of  nonsuit,  if 
the  defendant  was  the  recusant  party  ;  or  by  a  stay  of  proceedings, 
till  the  party  applying  for  the  commission  could  have  recourse  to 
a  court  of  equity,  by  instituting  a  new  suit  there,  auxiliary  to  the 
suit  at  law.^  But,  subsequently,  the  learned  judges  appear  not  to^ 
have  been  satisfied  that  it  was  proper  for  them  to  compel  a  part}% 
by  indirect  means,  to  do  that  which  they  had  no  authority  to  com- 
pel him  to  do  directly ;  and  they  accordingly  refused  to  put  off 
a  trial  for  that  purpose.^  This  inconvenience  was  therefore  reme- 
died by  statutes,^  which  provide  that,  in  all  cases  of  the  absence 

Judiciorum,  vol.  1,  pp.  150,  151,  152,  tit.  within  your  jurisdiction,  without  whose 
95,  96.  St'O  also  Id.  pp.  139-149,  tit.  88-  testimony  justice  cannot  completely  be 
9-1.  The  general  practice,  in  the  foreign  done  between  the  said  parties ;  we  there- 
continental  courts,  is,  to  retain  the  original  fore  request  you  that,  in  furtherance  of 
deposition,  which  is  entered  of  record,  re-  justice,  you  will,  by  the  proper  and  usual 
turning  a  copy  duly  authenticated.  But  process  of  your  court,  cause  such  witness 
in  the  conmion-law  courts,  the  production  or  witnesses  as  shall  be  named  or  pointed 
of  the  original  is  generally  required.  Clay  out  to  you  by  the  said  parties,  or  either 
V.  Stephenson,  7  Ad.  &  El.  185.  The  of  them,  to  appear  before  you,  or  some 
l)ractice,  however,  is  not  uniform.  See  eom])etent  person  by  you  for  that  purpose 
an  early  instance  of  letters  rogatory,  in  1  to  be  appointed  and  authorizeil,  at  a  pre- 
RoU.  Abr.  530,  pi.  15,  temp.  Ed.  1.  The  cise  time  and  i)lace,  by  you  to  be  fixed, 
following  form  may  be  found  in  1  Peters,  and  there  to  answer,  on  tlieir  oaths  and 

C.  C.  R.  236,  note  (a).  affirmations,  to  the  several  interrogatories 

hereunto    annexed ;    and    that    j^ou   will 

United  States  of  America.  cause  their  depositions  to  be  connnitted 

District  nf ^"  writing,  and  returned  to  us  mider  cover, 

^                                                      '  '  '  dulv  closed  and  sealed  up,  together  with 

i he  president  of  the  Lnited  States,  to  these  presents.    And  we  shall  be  readv 

any  judge  or  triliunal  havmg  jurisdiction  .,„fi  willing  to  do  the  same  for  vou  in  a 

ot  civil  causes,  in  the  city  (oj  province)  of  similar  case,  when  reciuired.    Witness,  .n^c. 

■ — ,  in  the  kingdom  ot  ,  Greet-  i  Fu,  ly  i:  Newnham,  Doug.  419  ;  Anon. 

^"»  ■  cited  in  iSIostyn  ir.  Fabrigas,  Cowp.  174; 

$******$       Whereas  a   certain   suit  is  2  Tidd's  Pr.  770,  810. 

I  SEAL.  I  pending  in  our  Court  -  Cailland  v.  Vaughan,  1  B.  &  P.  210. 

i******l  ^°''   ^''*^  district  of  ^ — ,  in  Sec  also  Grant  v.  Ridley,  5  JIan.  &  Grang. 

which    A.  B.   is    plaintiff  [or  203,  per  Tindal,  C.  J. ;  Macaulay  v.  Shack- 
claimant,  against  the  ship ],  and  C.  ell,  1  Bligh,  119,  180,  131,  x.  s. 

D.  is  defendant,  and  it  has  been  suggested  ^  13  Geo.  III.,  c.  63,  and  1  W.  IV.,  c. 
to   us  that   there   are  witnesses  residing  22 ;  Report  of  Coinniissioners  on  Chancery 


370  LAW   OF   EVIDENCE.  [PART   III. 

of  Avitncs.scs,  whether  by  sickness,  or  travelling  out  of  the  juris- 
diction, or  residence  abroad,  the  courts,  in  their  discretion,  for 
the  due  administration  of  justice,  may  cause  the  witnesses  to  be 
examined  uiulcr  a  commission  issued  for  that  purpose.  In  general, 
tiie  examination  is  made  by  interrogatories,  previously  prepared ; 
but,  in  proper  cases,  the  witnesses  may  be  examined  vivd  voce,  by 
the  commissioner,  who  in  that  case  writes  down  the  testimony 
given ;  or  he  may  be  examined  partly  in  that  manner  and  partly 
upon  interrogatories. 1 

§  321.  In  the  United  States,  provisions  have  existed  in  the  stat- 
utes of  the  several  states,  from  a  very  early  period,  for  the  taking 
jof  depositions  to  be  used  in  civil  actions  in  the  courts  of  law,  in 
"all  cases  \vlTcre  the"  personal  attendance  of  the  witness  could  not 
be  had,  by  reason  of  sickness  or  other  inability  to  attend ;  and 
also  in  cases  where' the  witness  is  about  to  sail  on  a  foreign 
voyage,  or  to  take  a  journey  out  of  the  jurisdiction,  and  not  to 
return  before  the  time  of  trial.^  Similar  provisions  have  also  been 
made  in  many  of  the  United  States  for  taking  the  depositions  of 
witnesses  in  j^erpetuam  rei  memoriam,  without  the  aid  of  a  court 

Practice,  p.  109 ;  Second  Report  of  Com-  Gye,  22  lb.  36.7,  in  a  case  where  the  mode 
missiouers  on  Courts  of  Common  Law,  of  examination  differs  from  the  English 
pp.  'I'-i,  24.  [In  Castelli  v.  Groome,  12  practice,  and  issuing  a  fresli  commission 
Eng.  Law  &  Eq.  K.  42(1  (16  Jur.  HH),  it  wiiure  the  former  connuission  was  in- 
was  held  tliat  tlie  court  would  not  exercise  effectual,  by  reason  of  the  refusal  of  the 
its  discretion  to  grant  the  commission  to  witness  to  answer.  In  Davis  v.  Barrett, 
examine  jiarties  to  the  action  under  1  W.  J?  Ih.  207,  tlie  connnissioners'  return, 
IV.,  c.  22,  imless  it  is  sliown,  by  the  ;  which  omitted  to  state  that  the  commis- 
party  applying  therefor,  that  it  is  neces-  '.  sioners  and  their  clerks  had  taken  the 
sary  to  the  due  administration  of  justice ;  '>  oaths,  and  where  the  commissioners  had 
and  that  it  is  not  enough  to  show  that  the  .not  signed  the  interrogatories,  was  allowed 
j)laintitr or  defendant  lives  out  of  the  juris-  Ito  be  amended  in  these  several  particu- 
diction  of  the  court ;  Lord  Campbell,  C.  J.,  :\lars.] 

saying,  "  it  would  lead  to  most  vexatious  i  2  Tidd's  Pr.  810,  811 ;  1  .Stark.  Evid. 

consequences,  if  constant  recourse  could     274-278;  I'liil.  &  Am.  on  Evid.  pp.  706- 
be  had  to  this  i)0wer;  and  it  would  be  so,     800;  2  Phil.  Evid.  386,  887,  388;  Pole  v. 
in  all  cases  where  llie  parties  wished  to     Rogers,  3  Bing.  n.  c.  780;   [Holaman  v. 
avoid  the  process  of  examination  here."     Cohen,  3  Kng.  Law  &  Eq.  R.  585.] 
Compton,  J.,  said,  "  The  only  question  in  -  See  Stat.  United  States,  1812,  ch.  25, 

my  mind  was,  whether  it  was  discre-  §3;  [2  Stat,  at  Large  (L.  &  B.'s  edit.), 
tionary  or  not  to  grant  the  rule,  but  that  682.]  In  several  of  the  Ignited  States, 
has  been  settled  by  Ducket  v.  Williams,  1  dei)ositions  may,  in  certain  contingencies, 
Cr.  &  J.  510,  s.  c.  0  Law  J.  Rep.  lOxch.  be  taken  and  used  in  criminal  cases.  See 
177,  and  it  has  always  been  held  so.  Arkansas  Rey.  Stat.  1837,  ch.  44,  p.  238; 
Formerly  there  was  great  difficulty  in  Indiana  Rev.  Stat.  1843,  ch.  54,  §§  39,  41 ; 
getting  the  commission  allowed,  and  a  Missouri  Rev.  Stat.  1845,  ch.  138,  S§  H, 
plaintiff  coidd  only  get  it  by  resorting  to  14  ;  Joirn  Rev.  Code,  1851,  ch.  190,  191. 
equity.  To  remeily  tins  inconvenience  [In  Afassarhusetts,  the  difaulant,  after  an 
the  act  was  passeil."  For  cases  under  issue  of  fact  is  joined  on  the  indictment, 
this  statute  see  B(">lin  v.  Mellidew,  5  Eng.  may  have  a  commission  to  take  the  testi- 
Law  &  Eq.  R.  387,  as  to  ])ractice  in  exe-  mony  of  a  material  witness  residing  out 
cuting  commissions  abroad  in  administer-  of  the  state.  Rev.  Stat.  ch.  136,  §  32; 
lug  oaths  under  foreign  law;  Lumley  v.     Acts  of  1851,  ch.  71.] 


CHAP.  I.]  ATTENDANX'E    OF   WITNESSES.  371 

of  equity,  in  cases  where  no  action  is  pending^  In  these  latter 
cases  there  is  some  diversity  in  the  statutory  provisions,  in  regard 
to  the  magistrates  before  whom  the  depositions  may  he  taken,  and 
in  regard  to  some  of  the  modes  of  proceeding,  the  details  of  which 
are  not  within  tlie  scope  of  this  treatise.  It  may  suffice  to  state 
that,  generally,  notice  must  be  previously  given  to  all  persons 
known  to  be  interested  in  the  subject-matter  to  Avhich  the  testimony 
is  to  relate ;  that  the  names  of  the  persons  thus  summoned  must 
be  mentioned  in  the  magistrate's  certificate  or  caption,  appended  to 
the  deposition;  and  that  the  deposition  is  admissible  only  in  case 
of  the  death  or  incapacity  of  the  witness,"'  and  against  those_only 
wlio  have  had  opportunity  to  cross^xamhiCj,  and  those  in„^rivity, 
with  them. 

§  322.  In  regard,  also,  to  the  other  class  of  depositions,  namely, 
those  taken  in  civil  causes,  under  the  statutes  alluded  to,  there 
are  similar  diversities  in  the  forms  of  proceeding.  In  some  of  the 
states,  the  judges  of  the  courts  of  law  are  empowered  to  issue 
commissions,  at  chambers,  in  their  discretion,  for  the  examination 
of  witnesses  unable  or  not  compellable  to  attend,  from  any  cause 
whatever.  In  others,  though  with  the  like  diversities  in  form, 
the  party  himself  may,  on  application  to  any  magistrate,  cause  the 
deposition  of  any  witness  to  be  taken,  who  is  situated  as  described 
in  the  acts.  In  their  essential  features  these  statutes  are  nearly 
alike ;  and  these  features  may  be  collected  from  that  part  of  the 
Judiciary  Act  of  the  United  States,  and  its  supplements,  which 
reg-ulate  this  subject.^  By  that  act,  when  the  testimony  of  a  person 
is  necessary  in  any  civil  cause,  pending  in  a  court  of  the  United 
States,  and  the  person  lives  more  than  a  hundred  miles  ^  from  the 
place  of  trial,  or  is  bound  on  a  voyage  to  sea,  or  is  about  to  go  out 
of  the  United  States,  or  out  of  the  district,  and  more  than  that 
distance  from  the  place  of  trial,  or  is  ancient,  or  very  infirm,  his 
deposition  may  be  taken  de  bene  esse,  before  any  judge  of  any 
court  of  the  United  States,  or  before  any  chancellor  or  judge  of 
any  superior  court  of  a  state,  or  any  judge  of  a  county  court,  or 
court  of  common  pleas,  or  any  mayor  or  chief  magistrate  of  any 

1  The  rule  is  the  same  in  equity,  in  to    take    the    deposition,   if   he    pleases, 

regard  to  depositions  taken  df  Ixne  esse,  Prouty  v.   Kuggles,  2  Story,  K.   199 ;   4 

because  of  the   sickness  of  the  witness.  Law  l?cp.  Itil. 
WegtieUn  v.  Wcguehn,  2  Curt.  2t53.  •'  These   distances  are  various  in  the 

-  Stats.  1789,  ch.  20,  §  30;  Stat.  1793,  similar  statutes  of  the  states,  but  are  gen- 

ch.  22,  §  6;   [1  U.  S.  Stats,  at  Large  (L.  erally  thirty  miles,  though  in  some  cases 

&  B.'s  edit.),  88,  335.]     This  provision  is  less.' 
not  peremptory ;  it  only  enables  the  party 


o<:: 


LAW   OF   EVIDENCE. 


[part   III. 


city  ^  ill  the  United  States,  not  being  of  counsel,  nor  interested  in 
the  suit ;  provided  that  a  notification  from  the  magistrate  before 
whom  the  deposition  is  to  be  taken,  to  the  adverse  party,  to  be 
present  at  the  taking,  and  put  interrogatories,  if  he  think  fit, 
bo  first  served  on  him  or  his  attorney,  as  either  may  be  nearest, 
if  either  is  within  a  hunth'cd  miles  of  the  place  of  caption  ;  allow- 
ing time,  after  the  service  of  the  notification,  not  less  than  at  the 
rate  of  one  day,  Sundays  exclusive,  lor  every  twenty  miles'  travel.^ 
The  witness  is  to  be  carefully  examined  and  cautioned,  and  sworn 
or  affirmed  to  testify  tjie  whole  truth,^  and  must  subscribe  the 
testimony  by  him  given,  after  it  has  been  reduced  to  writing  by 
the  magistrate,  or  by  the  deponent  in  his  presence.  The  deposi- 
tion, so  taken,  must  be  retained  by  the  magistrate,  until  he  shall 
deliver  it  with  his  own  hand  into  the  court  for  which  it  is  taken  ; 
or  it  must,  together  with  a  certificate  of  the  causes  or  reasons  for 
taking  it,  as  above  specified,  and  of  the  notice,  if  any,  given  to 
the  adverse  party,  be  by  the  magistrate  sealed  up,  directed  to  the 
court,  and  remain  under  his  seal  until  it  is  opened  in  court.'^ 
And  such  witnesses  may  be  compelled  to  appear  and  depose  as 


1  In  the  several  states,  this  authority 
is  generally  delegated  to  justices  of  the 
peace. 

-  Under  the  Judiciary  Act,  §  30,  there 
must  be  personal  notice  served  upon  the 
adverse  party ;  service  by  leaving  a  copy 
at  his  place  of  abode  is  not  sufficient. 
Carrington  v.  Stiinson,  1  Curtis,  ("t.  Ct. 
437.  The  magistrate  in  his  return  need 
not  state  the  disfcince  of  tlie  place  of  resi- 
dence of  tlie  party  or  his  attorney  from 
the  place  where  the  deposition  was  taken. 
Voce  V.  Lawrence,  i  McLean,  203.  To 
ascertain  tlie  proper  notice  in  point  of 
time  to  be  given  to  the  adverse  party,  the 
distance  must  be  reckoned  from  tlie  par- 
ty's residence  to  the  place  of  caption. 
Porter  v.  Plllsbury,  3tj  Maine,  278.  Where 
the  certificate  states  simi)ly  tliat  the  ad- 
verse party  was  not  persdiially  ])resent,  a 
copy  of  the  notice  and  of  the  return  of 
service  thereof,  should  be  anne.xed ;  and 
if  it  is  not  annexed,  and  it  does  not  dis- 
tinctly appear  that  the  adverse  party  was 
present  either  in  person  or  by  counsel,  the 
deposition  will  be  rejected.  Carleton  v. 
Patterson,  9  Foster,  580;  see  also  Bowman 
V.  Sanborn,  -t  lb.  87. 

^  Where  the  stiite  statute  requires  that 
tlie  deponent  shall  be  sworn  to  testify  to 
the  truth,  the  whole  truth,  &c.,  "  rfldtlnfj 
to  the  rwixe  for  which  thf  (If position  is  to  be 
taken,"  the  omission  of  the  magistrate  in 
his  certilitate   to  state   that  the  witness 


was  so  sworn,  makes  the  deposition  inad- 
missible ;  and  the  defect  is  not  cured  by 
the  addition  that  "  after  giving  the  depo- 
sition he  was  duly  sworn  thereto  accord- 
ing to  law."  Parsons  v.  Iluff,  38  Maine, 
137;  Brighton  v.  Walker,  35  lb.  13:i; 
Fabyan  r.  Adams,  15  N.  II.  371.  It 
should  distinctly  appear  that  the  oath 
was  admiuistered  where  the  witness  was 
examined.  Erskine  v.  Boyd,  35  Maine, 
511. 

*  The  mode  of  transmission  is  not  pre- 
scribed by  the  statute  ;  and  in  practice  it 
is  usual  to  transmit  deiiositions  by  post, 
whenever  it  is  most  convenient;  in  which 
case  the  postages  are  included  in  the 
taxed  costs.  Prouty  i'.  Kuggles,  2  Story, 
n.  199  ;  4  Law  Reporter,  IGl.  Care  must 
be  tiiken,  however,  to  inform  the  clerk,  by 
a  proper  siiiierscription,  of  the  nature  of 
the  document  enclosed  to  his  care  ;  for,  if 
opened  by  him  out  of  court,  though  by 
mistake,  it  will  be  rejected.  Beal  v. 
Thompson,  8  Cranch,  70.  But  see  Law 
V.  Law,  4  Greenl.  107.  [A  deposition  not 
certified  by  the  magistrate  to  have  been 
signed  by  the  deponent  is  admissible  in 
tlie  Federal  Courts.  Voce  v.  Lawrence, 
4  McLean,  203 ;  but  unless  it  is  certified 
to  have  been  retained  by  the  magistrate 
until  sealed  up  and  directed  to  the  proper 
court,  it  is  inadmissible  in  such  courts. 
Shankwiker  v.  Keailing,  lb.  420. J 


CHAP,  I.] 


ATTENDANCE   OF   "WITNESSES, 


373 


above  mentioned,  in  the  same  manner  as  to  appear  and  testify 
in  court.  Depositions,  thus  taken,  may  be  used  at  the  trial  by 
either  party,  whether  the  witness  was  or  was  not  cross-examined,^ 
if  it  shall  ap]:)ear,  to  the  satisfaction  of  the  court,  that  the  wit- 
nesses arc  then  dead,  or  gone  out  of  the  United  States, ^  or  more 
than  a  hundred  miles  from  the  place  of  trial,  or  that  by  reason 
of  age,  sickness,  bodily  infirmity,  or  imprisonment,  they  are  unable 
to  travel  and  appear  at  court. 

§  323.  The  provisions  of  this  act  being  in  derogation  of  the 
common  law,  it  has  been  held  that  they  must  be  strictly  complied 
with.3     But  if  it  appears  on  the  face  of  the  deposition,  or  the  cer- 


1  Dwight  V.  Linton,  3  Eob.  Louis.  R. 
57.  [Where  the  testimony  of  a  witness  is 
substantially  complete,  a  deposition  (taken 
under  a  state  statute),  duly  signed  and 
certified,  is  not  to  be  rejected,  because  the 
cross-examination  was  unfinished  in  con- 
sequence of  the  sickness  or  death  of  the 
witness.  If  not  so  advanced  as  to  be  sub- 
stantiall}''  complete,  it  must  be  rejected. 
Tims,  where  it  appeared  on  the  face  of 
the  deposition  that  the  cross-examination 
was  not  finished,  the.  defendant  having 
refused,  in  consequence  of  severe  sick- 
ness, of  which  he  soon  afterwards  died,  to 
answer  the  nineteenth  cross-interrogatory, 
which  only  asked  for  a  more  particular 
sUitement  of  facts  to  which  the  witness 
liad  testified,  the  deposition  was  held  to 
have  been  properly  admitted.  Fuller  v. 
Rice,  4  Gra}',  343;  Valton  v.  National 
Loan,  &c..  Society,  22  Barb.  9.] 

■^  In  proof  of  the  absence  of  the  wit- 
ness, it  has  been  held  not  enough  to  give 
evidence  merely  of  inquiries  and  answers 
at  his  residence ;  but,  tliat  his  absence 
must  be  shown  by  some  one  who  knows 
tlie  fact.  Robinson  v.  Markis,  2  M.  & 
Rob.  375.  And  see  Hawkins  v.  Brown,  3 
Rob.  Louis.  R.  310,  [§  323,  note  ;  Weed  v. 
Kellogg,  6  McLean,  44.  Wliere  the  cause 
of  taking  the  deposition  was  that  the  de- 
ponent was  about  to  leave  the  state,  &c., 
and  a  subpcena  had  been  issued  at  the 
time  of  the  trial,  to  the  deponent,  to  ap- 
pear as  a  witness,  iipon  which  a  constable 
of  the  place  where  the  deponent  resided, 
liad  returned  that  he  made  diligent  in- 
quiry and  search  for  the  witness,  and 
could  not  find  him,  it  was  held  to  be  suf- 
ficient proof  of  the  deponent's  absence,  so 
that  the  deposition  could  be  used.  Kin- 
ney V.  Berran,  6  Cush.  3'J4.] 

^  Bell  I*.  Morrison,  1  Peters,  355 ;  the 
"  Thomas  &  Henry  "  v.  The  United  States, 
1  Brockenbrough,  367 ;  Nelson  v.  The 
United   States,   1  Peters,    C.   C.  R.  235. 

VOL.  I.  3 


The  use  of  ex  parte  depositions,  taken 
without  notice,  under  this  statute,  is  not 
countenanced  by  the  courts,  where  evi- 
dence of  a  more  satisfactory  character  can 
be  obtained.  The  views  of  the  learned 
judges  on  tins  subject  have  been  thus  ex- 
pressed by  Mr.  Justice  Grier: — "  While 
we  are  on  this  subject,  it  will  not  be  im- 
proper to  remark,  that  when  the  act  of 
congress  of  1789  was  passed,  permitting 
ex  parte  depositions,  without  notice,  to  be 
taken  where  the  witness  resides  more 
than  a  hundred  miles  from  the  place  of 
trial,  such  a  provision  may  have  been 
necessary.  It  then  required  nearly  as 
much  time,  labor,  and  expense  to  travel 
one  hundred  miles  as  it  does  now  to 
travel  one  thousand.  Now  testimony 
may  be  taken  and  returned  from  Califor- 
nia, or  any  part  of  Europe,  on  commis- 
sion, in  two  or  three  months.;  and  in  any 
of  the  states  east  of  the  Rocky  Mountains 
in  two  or  three  weeks.  There  is  now  sel- 
dom any  necessity  for  having  recourse  to 
this  mode  of  taking  testimony.  Besides, 
it  is  contrary  to  the  course  of  the  common 
law ;  and,  except  in  cases  of  mere  formal 
proof  (such  as  tlie  signature  or  execution 
of  an  instrument  of  writing),  or  of  some 
isolated  fact  (such  as  demand  of  a  bill, 
or  notice  to  an  indorser),  testimony  thus 
taken  is  liable  to  great  abuse.  At  best,  it 
is  calculated  to  ehcit  only  such  a  partial 
statement  of  the  truth  as  may  have  the 
etlect  of  entire  falsehood.  The  person 
who  prepares  the  witness  and  examines 
him,  can  generally  have  so  much  or  so 
little  of  the  truth,  or  such  a  version  of  it 
as  will  suit  his  case.  In  closely  contested 
cases  of  tact,  testimonj-  thus  obtained  must 
always  bo  unsatisfactory  and  liable  to  sus- 
picion, especially  if  the  party  has  had  time 
and  'opportunity  to  take  it  in  the  regular 
way.  Tliis  provision  of  the  act  of  con- 
gress should  never  be  resorted  to,  unless 
in    circumstances  of  absolute  necessity, 


LAW    OF    EVIDENCE. 


[part    III. 


tificatc  which  accompanies  it,  that  the  magistrate  before  whom  it 
was  taken  was  duly  authorized,  within  the  statute,  it  is  sufficient, 
in  the  first  instance  without  any  other  proof  of  his  authority ;  ^ 
and  his  certificate  will  bo  good  evidence  of  all  the  facts  therein 
stated,  so  as  to  entitle  the  deposition  to  be  read,  if  the  necessary 
facts  are  triercin  sufficiently  disclosed.'^  In  cases  where,  under 
the  authority  of  an  act  of  congress,  the  dep(jsition  of  a  witness  is 
taken  de  bene  esse,  the  party  producing  the  deposition  must  show 
affirmatively  that  his  inability  to  procure  the  personal  attendance 
of  the  witness  still  continues ;  or,  in  other  words,  that  the  cause 
of  taking  the  deposition  remains  in  force.  But  this  rule  is  not 
applied  to  cases  where  the  witness  resides  more  than  a  hundred 
miles  from  the  place  of  trial,  he  being  beyond  the  reach  of  com- 
pulsory process.  If  he  resided  beyond  that  distance  when  the 
deposition  was  taken,  it  is  presumed  that  he  continues  so  to  do, 
until  the  party  opposing  its  admission  shows  that  he  has  removed 
within  the  reach  of  a  subpoena.^ 


or  in  the  excepted  cases  we  have  just 
uieiitioned."  See  Walsh  v.  Rogers,  13 
How.  s.  c.  R.  281),  287. 

1  Ruggles  V.  13  ucknor,  1  Painq,  358 ; 
The  ratai)sco  Ins.  Co.  v.  Sijuthgate,  5 
Peters,  GO-I;  Fowler  v.  Merrill,  11  How. 
375 ;  [Palmer  c.  Pugg,  35  JNIaine,  368 ; 
Iloyt  V.  Hainmekin,  li  How.  U.  S.  316 ; 
Powler  V.  Merrill,  11  lb.  375 ;  Lyon  v.  Ely, 
'li.  Conn.  507.  Wliere  depositions  are 
taken  before  a  mayor  and  are  certified  by 
him,  though  without  an  official  seal,  the 
court  will  presuuie  that  he  was  mayor, 
unless  the  contrary  be  shown.  Price  v. 
Morris,  5  McLean,  4 ;  see  also  Wilkinson 
i;.  Yale,  6  McLean,  16.  Where  it  is  made 
the  duty  of  the  magistrate  taking  a  depo- 
sition to  eertily  the  reason  for  taking  it, 
his  certificate  of  the  cause  of  taking  is 
prima  facie  proof  of  the  fact,  and  renders 
the  deposition  admissible,  unless  it  is  con- 
troUeil  by  other  evidence.  West  Boylston 
r.  Sterling,  17  I'ick.  126;  Littlehale  v.  I)ix, 
11  lb.  365.  Nor  is  it  nece.-^sary  that  it 
should  appear  l)y  the  deposition  or  the 
certificate  in  wliat  manner,  or  by  what 
evidence,  the  magistrate  was  satisfied  of 
the  existence  of  the  cause  of  the  taking. 
It  is  enough,  if  he  certifies  to  the  fact 
upon  his  official  responsibility.  Thus, 
wiiere  tlie  magistrate  duly  certified  that 
the  deponent  lived  more  than  thirty  miles 
from  tlie  place  of  trial,  no  evidence  being 
offered  to  contr(>i  the  certificate,  and  the 
court  not  being  bound  to  take  judicial  no- 
tice of  the  distance   of  one   place   from 


another,  it  was  held  that  the  deposition 
was  rightly  admitted.  Littlehale  v.  l)ix, 
vh.  supra.  Where  the  magistrate  certifies 
that  the  "  cause  assigned  by  the  plaintiff," 
wlio  was  the  party  taking  the  dejiosition, 
for  taking  the  same,  was  the  deponent's 
being  about  to  leave  the  commonwealth, 
and  not  to  return  in  time  for  tlie  trial,  it 
is  proper  that  such  party  should  show  that 
the  cause  existed  at  the  time  of  the  trial. 
I\inney  v.  Bcrran,  6  Cu.sh.  3'J4.] 

•i  Bell  V.  M-orrison,  1  Peters,  356. 

^  The  Patapsco  Ins.  Co.  v.  Sonthgate, 
5  Peters,  604,616,  617,  618  ;  Pettibone  v. 
Derringer,  4  Wash.  215;  1  Stark.  Evid. 
277.  [Wliere  a  deposition  is  taken  under 
the  act.  of  congress,  without  notice,  the 
adverse  party,  if  dissatisfied,  should  have 
it  taken  again.  Goodhue  v.  Bartlett,  5 
McLean,  186.  Where  the  Federal  Circuit 
Court  adopts  the  law  and  practice  of  tlie 
state  in  taking  depositions,  it  will  be  pre- 
sumed to  have  adopted  a  modification 
thereof,  which  has  been  followed  for  a 
long  time.  But  whatever  be  the  state 
law,  the  act  of  congress  is  to  prevail, 
which  requires  that  the  deponent  should 
live  one  hundred  miles  from  the  court. 
Curtis  V.  Central  Railroad,  6  McLean, 
401. 

A  few  cases  are  added,  illustrating  the 
rules  of  law  and  the  practice  of  tlie  courts 
in  regard  to  admitting  or  rejecting  depo- 
sitioiis.  Depositions  of  several  witnesses, 
taken  under  one  commission  on  one  set 
of  interrogatories,  a  part  of  which  only 


CHAP.  I.] 


ATTENDANCE   OF   WITNESSES. 


875 


§.324.  By  the  act  of  Congress  already  citcd,^  the  power  of  the 
courts  of  the  United  States,  as  courts  of  common  law,  to  grant 
a  dedlmus  potestatem  to  take  depositions,  whenever  it  may  be 
necessary,  in  order  to  prevent  a  failure  or  delay  of  justice,  is 
expressly  recognized  ;  and  the  circuit  courts,  when  sitting  as  courts 
of  equity,  are  empowered  to  direct  de])ositiuns  to  be  taken  m  per-^ 
petuam  ret  memoriam^  according  to  the  usages  in  chancery,  where 
the  matters  to  which  they  relate  are  cognizable  in  those  courts. 
A  later  statute  ^  has  facilitated  the  taking  of  depositions  in  the 
former  of  these  cases,  by  providing  that  wlien  a  connnission  shall 
be  issued  by  a  court  of  the  United  States  for  taking  the  testimony 


? 


are  to  be  propounded  to  each  witness,  can 
be  used  in  evidence.  Fowler  v.  Merrill, 
11  How.  U.  S.  375.  If  the  words  "  before 
nie,"  preceding  the  name  of  the  magis 
trate  before  whom  the  deposition  was 
taken  and  sworn,  be  omitted  in  the  cap- 
tion, the  deposition  is  not  admissible. 
Powers  V.  Shepard,  1  Foster,  N.  H.  60. 

^Vhere  one  party  takes  a  deposition  on  in- 
terrogatories, or  portions  of  a  deposition, 
for  the  purpose  of  meeting  the  testimony 
of  a  witness  who  has  deposed,  or  testi- 
mony which  he  may  expect  the  other 
party  will  produce,  but  does  not  intend  to 
use  the  answers  thereto,  unless  the  other 
testimony  is  introduced,  he  must  accom- 
pany the  interrogatories  with  a  distinct 
notice  in  writing  that  his  purpose  is  mere- 
ly to  meet  the  testimony  of  his  adversary's 
witness  or  witnesses ;  and  if  this  is  not 
done,  the  answers  must  be  read   to   the 

^Jury  if  required  by  the  other  party.  This 
IS  the  most  eligible  rule  in  such  cases, 
and  will  save  to  each  party  all  his  just 
rights,  and  prevent  all  unfairness  and  sur- 
prise. By  Metcalf,  J.,  in  Linfield  v.  Old 
Colony  li.  11.  Corp.  10  Cush.  570.  See 
McKelvy  v.  De Wolfe,  20  Penn.  State  K. 
374.  A  deposition  taken  under  a  commis- 
sion duly  issued  on  "  interrogatories  to  be 
put  to  ^|.  H.  B.  of  Janesville,  Wisconsin, 
laborer,"  but  which  purports  by  its  cap- 
tion to  be  the  deposition  of  M.  II.  B.,  of 
Sandusky,  Ohio,  and  in  which  the  depo- 
nent states  his  occupation  to  be  that  of 
peddler,  is  admissible  in  evidence,  not- 
withstanding the  variance,  if  it  appciirs 
^  that  the  deponent  is  tiie  same  person  to 
whom  the  interrogatories  are  addressed. 
Smith  V.  Castles,  1  Gra}^  108.  The  ques- 
tions appended  to  a  commission  sent  to 
Bremen  were  in  English ;  the  commis- 
sioners returned  the  answers  in  German, 
annexed  to  a  German  translation  of  the 
questions  ;  the  commission  was  objected 
to  on  the  ground  that  the  return  should 


have  been  in  English,  or  accompanied  by 
an  English  translation ;  but  the  objection 
was  overruled ;  and  a  sworn  interpreter 
was  permitted  to  translate  the  answers 
viva  voce  to  the  jury.  Kuhtmaii  v.  Brown, 
4  Rich.  470.  Where  a  deposition  is  taken 
by  a  magistrate  in  anotlier  state,  under  a 
written  agreement  that  it  may  be  so  taken 
upon  the  interrogatories  and  cross-inter- 
rogatories annexed  to  the  agreement,  such 
agreement  operates  only  as  a  substitute 
for  a  commission  to  the  magistrate  named 
therein,  and  a  waiver  of  objections  to  the 
inteiTogatories  in  point  of  form,  and  does 
not  deprive  either  party  of  the  right  to 
object,  at  the  trial,  to  the  interrogatories 
and  answers,  as  proving  facts  by  incom- 
petent evidence.  Atlantic  Mutual  Ins. 
Co.  V.  Fitzpatrick,  2  Gray,  270;  Lord  vl 
Moore,  37  Maine,  208.  And  to  exclud^ 
the  deposition  on  the  ground  of  the  in- 
terest of  the  deponent,  it  is  not  necessary 
that  the  objection  should  be  taken  before^ 
the  magistrate.  Whitney  v.  Ileywood,  o 
Cush.  82;  infra,  %  421,  note.  Where  the 
witnesss  was  interested  at  the  time  his 
deposition  was  taken,  and  a  release  to 
him  was  afterwards  executed,  the  depo- 
sition was  not  admitted.  Eeed  v.  Rice, 
25  Vt.  171 ;  Ellis  v.  Smith,  10  Geo.  253. 
If  the  deponent  is  disqualified  by  reasorS 
of  interest  at  the  time  of  giving  his  depo- 
sition, and  at  the  time  of  the  trial  the  dis- 
qualification has  been  removed  by  statute, 
the  deposition  can  be  used  in  evidence^ 
Haynes  v.  Rowe,  40  Maine,  181.  Whore, 
after  the  deposition  is  taken,  lie  becomes 
interested  in  tiie  event  of  the  suit,  by  no 
act  of  his  own,  or  of  the  party  who  oilers 
his  testimony,  the  deposition  is  admissi- 
ble.    Sabine  v.  Strong,  (3  Met.  670.1 

1  Stat.  1789,  ch.  20,  §  30. 

'-•  Stat  1827,  ch.  4.  See  the  practice 
and  course  of  proceeding  in  these  cases, 
in  2  Paine  &  Duer's  Pr"^  pp.  102-110;  2 
Tidd's  Pr.  810,  811,  812. 


nr 


I 


37G  LAW   OF   EVIDENCE.  [PART  III. 

of  a  witness,  at  any  place  within  the  United  States,  or  the  territo- 
ries thereof,  the  clerk  of  any  court  of  the  United  States,  for  the 
district  or  territory  where  the  place  may  be,  may  issue  a  subpoena 
for  the  attendance  of  the  witness  before  the  commissioner,  provided 
the  place  be  in  the  county  where  the  witness  resides,  and  not  more 
than  forty  miles  from  his  dwelling.  And  if  the  witness,  being 
duly  summoned,  shall  neglect  or  refuse  to  appear,  or  shall  refuse 
to  testify,  any  judge  of  the  same  court,  upon  proof  of  such  con- 
tempt, may  enforce  obedience,  or  punish  the  disobedience,  in  the 
same  manner  as  the  courts  of  the  United  States  may  do,  in  case 
of  disobedience  to  their  own  process  of  subpoena  ad  testificandum. 
Some  of  the  states  have  made  provision  by  law  for  the  taking  of 
depositions,  to  be  used  in  suits  pending  in  other  states,  by  bring- 
ing the  deponent  within  the  operation  of  their  own  statutes  against 
perjury ;  and  national  comity  plainly  requires  the  enactment  of 
similar  provisions  in  all  civilized  countries.  But  as  yet  they  are 
far  from  being  universal ;  and  whether,  in  the  absence  of  such 
provision,  false  swearing  in  such  case  is  punishable  as  perjury, 
has  been  gravely  doubted.^  Where  the  production  of  papers  is 
Required,  in  the  case  of  examinations  under  commissions  issued 
from  courts  of  the  United  States,  any  judge  of  a  court  of  the 
United  States  may,  by  the  same  statute,  order  the  clerk  to  issue 
a  subpoena  duces  tecum  requiring  the  witness  to  produce  such 
papers  to  the  commissioner,  upon  the  affidavit  of  the  applicant  to 
his  belief  that  the  witness  possesses  the  papers,  and  that  they  are 
material  to  his  case ;  and  may  enforce  the  ol)cdiencc  and  punish 
the  disobedience  of  the  witness,  in  the  manner  above  stated. 
/^    §  325.  But  independently  of  statutory  pro^dsions,  chancery  has 

3^  power  to  sustain  bills,  filed  for  the  purpose  of  preserving  the  evi- 
dence  of  witnesses  in  perpetuam  rei  memoriam,  touching  any  matter 
which  cannot  be  immediately  investigated  in  a  court  of  law,  or 
where  the  evidence  of  a  material  witness  is  likely  to  be  lost,  by  his 
death,  or  departure  from  the  jurisdiction,  or  by  any  other  cause, 
Ijefore  tho  facts  can  be  judicially  investigated.  The  defendant,  in 
such  cases,  is  compelled  to  appear  and  answer,  and  the  cause  is 
l>roug]it  to  issue,  and  a  commission  for  the  examination  of  the 
witnesses  is  made  out,  executed,  and  returned,  in  the  same  man- 

*^      ner  as  in  other  cases  ;  but  no  relief  being  prayed,  the  suit  is  never 


^ 


1  CaOland  v.  Vaughan,  1  B.  &  B.  210. 


CHAP.  I.]  ATTENDANCE   OF   WITNESSES.  377 

brought  to  a  hearing ;  nor  will  the  court  ordinarily  permit  the 
publication  of  the  depositions,  except  in  support  of  a  suit  or  action  ; 
nor  then,  unless  the  witnesses  are  dead,  or  otherwise  incapable 
of  attending  to  be  examined.^ 

1  Smith's  Chancery  Prac.  284-286. 


32* 


378  LAW   OF   EVIDENCE.  [I'ART   III. 


CHAPTER    11. 

OF   THE   COMPETENCY   OF   WITNESSES. 

[  *  §  326.  The  reasons  for  excluding  certain  kinds  of  evidence. 

327.  Classes  of  persons  incompetent  to  testify. 

328.  Definitions  of  an  oath. 

■■^~~— S29.  General  rule  of  the  conunou  law,  that  a  party  to  the  record  cannot  be  a  wit- 
ness. 

330.  At  common  law,  parties  to  the  suit  not  compelled  to  give  evidence  for  the 

opposite  party. 

331.  Whether  corporators  are  parties  within  this  rule,  discussed. 

332.  Private  corporations  divided  into  moneyed  and  religious  and  charitable  in- 

stitutions. 

833.  Members  of  the  latter  admissible  as  witnesses ;  of  the  former,  not. 

334.  Rule  excluding  parties  applies  to  husband  and  wife. 

335.  Neither  admitted  as  witness  where  the  interests  of  the  other  involved. 

336.  Not  material  when  the  relation  of  husband  and  wife  commenced. 

337.  Nor  that  the  relation  no  longar  exists. 

338.  Spirit  and  extent  of  rule,  analogous  to  that  excluding  communications  of 

client  to  attorney. 

339.  Rule  extends  only  to  lawful  marriages. 

340.  Whether  the  rule  may  be  relaxed  by  consent,  authorities  not  agreed. 

341.  Where  husband  or  wif'o  is  not  a  party,  but  directly  interested,  the  other  is 

incompetent  to  testify. 

342.  Rule  is  otherwise  in  collateral  proceedings. 

343.  344,  345.  Some  exceptions  to  the  general  rule. 

346.  Dying  declarations  of  husband  or  wife  sometimes  admissible  against  the 

other. 

347.  Rule  excluding  parties  applies,  however  small  the  interest  of  the  party. 

348.  Some  exceptions  to  the  rule  excluding  parties. 

349.  Party  sometimes  admitted  to  prove  facts  which  none  but  a  party  likely  to 

know. 

350.  Some  exceptions  to  general  rule  arising  fi-om  public  necessity. 

351.  Another  exception,  admission  of  answer  of  defendant  in  equity. 

352.  Oath  of  party  taken  diverso  intuitu  sometimes  admitted  in  his  favor. 

353.  No  one  nominally  or  substantially  a  party  to  the  record  compellable  to  testify. 

354.  One  party  not  admissible  for  adverse  party  without  consent  of  all  parties  to 

the  record. 

355.  Suit  being  ended  as  to  one  defendant,  he  may  testify  for  others. 

356.  Rule  formerly  otherwise  in  actions  on  contracts. 

357.  But  not  in  actions  on  torts. 

358.  Witness  improperly  made  defendant  to  exclude?  his  testimony  may  be  made 

competent  by  verdict  in  his  favor,  at  discretion  of  court. 


CHAP.  II.]  COMPETENCY   OF   WITNESSES.  379 

§  359.  "Witness  made  defendant  by  mistake  may  bo  omitted  on  motion. 
ottO.  Witness  for  co-detendant  in  ejectment  may  be  defaulted  and  testify. 

361.  Parties  to  tlie  record  examined  in  ciiancery,  how  and  when. 

362.  General  principles  as  to  admission  or  exclusion  of  parties  same  in  civil  and 

criminal  cases. 
^  363.  State  must  discharge  a  defendant  before  he  can  testify  against  others  in- 
dicted with  him. 

364.  When  judges  and  attorneys  may  testify. 

365.  Persons  deficient  in  understanding  incompetent  to  testify. 

366.  Deaf  and  dumb  persons  may  testify,  after  proof  tliat  they  have  suflBcient 

understanding. 

367.  No  precise  age  when  children  are  excluded ;  presumed  to  be  competent  at 

fourteen. 

368.  Persons  insensible  to  the  obUgations  of  an  oath  incompetent. 

369.  Belief  in  the  being  of  God  and  a  futm-e  state  of  rewards  and  punishments 

sufficient. 

370.  Defect  of  religious  faith  never  presumed ;  must  be  shown  by  party  objecting. 

371.  Witnesses  must  be  sworn  in  the  manner  they  deem  binding. 

372.  Peisons  mfdmous  incompetent. 

373.  What  crimes  render  perpetrator  infamous. 

374.  Persons  so  disquahtied  when  a  party  may  make  certain  affidavits. 

375.  Only  the  jmhjment  is  evidence  of  person's  guilt  to  render  him  incompetent. 

376.  Conviction  in  one  country  does  not  render  witness  incompetent  in  another. 

377.  Disability  from  infamy  removed  by  reversal  of  judgment  and  by  pardon. 
-"'"^^378.  Where  disability  is  annexed  by  statute  to  the  conviction  of  a  crime,  pardon 

does  not  remove. 

379.  Particeps  criminis  not  convicted  and  sentenced,  not  on  that  accoimt  incompe- 

tent. 

380.  Degree  of  credit  to  be  given  to  his  testimony  exclusively  for  the  jury. 

381.  Courts  not  agreed  as  to  manner  and  extent  of  corroboration  required. 

382.  Rule  does  not  apply  as  to  conspirators  who  early  disclose  the  conspiracy. 

383.  384.  Party  to  a  negotiable  instrument  competent  witness  to  imj^each  it. 

385.  Weight  of  American  authority  against  English  rule. 

386.  Parties  legally  interested  in  result  of  cause  incompetent  to  testify. 

387.  Interest  must  be  real  and  not  merely  apprehended. 

388.  Witness  under  an  honorary  obligation  not  disqualified. 

389.  Interest  must  be  in  the  event  of  the  cause,  and  not  in  the  question. 

390.  True  test,  the  gain  or  loss  by  witness  by  the  judgment. 

391.  Magnitude  or  degree  of  interest  not  regarded. 

392.  Illustrations  of  the  nature  of  the  interest  wliich  disqualifies. 

393.  Witness,  made  hable  by  adverse  event  of  suit,  incompetent. 

394.  395.  Illustrations  of  this  rule. 

396.  Witness  incompetent  where  his  testimony  by  charging  defendant  discharges 

himself. 

397.  Obligation  to  indemnify  against  fact  essential  to  judgment  renders  witness 

incompetent. 
"^(---598.  Implied  warrantors  not  competent  to  prove  title. 

399.  Parties  to  negotiable  instrument  competent  in  suits  between  other  parties. 

400.  Possible  interest  of  such  witnesses  goes  only  to  credibility. 

401.  But  certain  interest  renders  incompetent. 

402.  Also  liability  for  costs  of  suit. 


380  LAW   OF   EVIDENCE.  [PART  HI. 

---   §  403.  Any  interest  in  criminal  prosecution  renders  witness  incompetent. 

404.  Disqualification  from  interest*  in  record  considered. 

405.  Illustrations  of  interest  in  record  as  evidence. 

406.  Cases  of  interest  in  record  as  evidence  and  in  event  of  suit. 

407.  Rule  same  in  criminal  cases. 

408.  Eemote,  continuent  and  uncertain  interest  does  not  disqualify. 

409.  Further  illustrations  of  this  rule. 

410.  Witness  may  testify  against  interest. 

411.  Classification  of  exceptions  to  general  rule. 

412.  Witness  entitle<l  to  reward  from  govenmient  not  disqualified. 
Nor  when  entitled  to  pardon. 
Nor  when  witness  will  derive  any  other  benefit  from  conviction  of  defendant. 

415.  Statute  exceptions  to  general  rule. 

416.  Agents  competent  for  their  princii^als. 

417.  Limitations  of  this  rule. 

418.  Of  interest  subsequently  acquired  as  disqualifying. 
,<^^419.  Offer  to  release  interest  restores  competency  of  witness. 

420.  Equal  interest  on  both  sides  no  disqualification. 

421.  Objection  of  interest  to  be  taken  before  direct  examination. 

422.  When  it  arises  from  examination  may  be  removed  by  further  examination. 

423.  Interest  must  be  shown  either  by  examination  of  witness  or  by  evidence 

aliunde. 

424.  Definition  of  voir  dire. 

c-.    .-— 425.  Interest  of  witness  question  for  court. 

426.  Competency  always  restored  by  release. 

427.  Release  must  be  by  party  holding  interest. 

428.  Interests  which  cannot  be  reached  by  a  release. 

429.  Release  need  not  be  delivered  into  hands  of  releasee. 

430.  Other  methods  of  restoring  competency.] 


§  326.  Although,  in  the  ordiiiaiy  affairs  of  life,  temptations  to 
practise  deceit  and  falsehood  may  be  comparatively  few,  and  there- 
fore men  may  ordinarily  be  disposed  to  believe  the  'statements  of 
each  other  ;  yet,  in  judicial  investigations,  the  motives  to  pervert 
the  truth  and  to  perpetrate  falsehood  and  fraud  are  so  greatly 
multiplied,  that  if  statements  were  received  with  the  same  undis- 
criminating  freedom  as  in  private  life,  the  ends  of  justice  could 
with  far  less  certainty  be  attained.  In  private  life,  too,  men  can 
inquire  and  determine  for  themselves  whom  they  will  deal  with, 
and  in  whom  they  will  confide ;  but  the  situation  of  judges  and 
jurors  renders  it  difficult,  if  not  impossible,  in  the  narrow  compass 
of  a  trial,  to  investigate  the  character  of  witnesses ;  and  from  the 
very  nature  of  judicial  proceedings,  and  the  necessity  of  preventing 
the  multiplication  of  issues  to  be  tried,  it  often  may  happen  that 
the  testimony  of  a  witness,  unworthy  of  credit,  may  receive  as 
much  consideration  as  that  of  one  worthy  of  the  fullest  confidence. 


CHAP.  II.]  COMPETENCY   OF   WITNESSES.  381 

If  no  means  were  employed  totally  to  exclude  any  contaminating 
influences  from  the  fountains  of  justice,  this  evil  would  constantly 
occur.  But  the  danger  has  always  been  felt,  and  always  guarded 
against,  in  all  civilized  countries.  And  while  all  evidence  is  open 
to  the  objection  of  the  adverse  party,  before  it  is  admitted,  it  has 
been  found  necessary  to  the  ends  of  justice,  that  certain  kinds  of 
evidence  should  be  uniformly  excluded. ^ 

§  327.  In  determining  what  evidence  shall  be  admitted  and 
weighed  by  the  jury,  and  what  shall  not  be  received  at  all,  or,  in 
other  words,  in  distinguishing  between  competent  and  incomjjetcnt 
witnesses,  a  principle  seems  to  have  been  applied  similar  to  that 
which  distinguishes  between  conclusive  and  disputable  presump- 
tions of  law ,2  namely,  the  experienced  connection  between  the 
situation  of  the  witness,  dnd  the  truth  or  falsity  of  his  testimony. 
Thus,  the  law  excludes  as  incompetent,  those  persons  whose  evi- 
dence, in  general,  is  found  more  likely  than  otherwise  to  mislead 
juries  ;  receiving  and  weighing  the  testimony  of  others,  and  giving 
to  it  that  degree  of  credit  which  it  is  found  on  examination  to 
deserve.  It  is  obviously  impossible  that  any  test  of  credibility 
can  be  infallible.  All  that  can  be  done  is  to  approximate  to  such 
a  degree  of  certainty  as  will  ordinarily  meet  the  justice  of  the 
case,  I  The  question  is  not,  whether  any  rule  of  exclusion  may  not 
sometimes  shut  out  credible  testimony  ;  but  whether  it  is  expedient 
that  there  should  be  any  rule  of  exclusion  at  all.  If  the  purposes 
of  justice  require  that  the  decision  of  causes  should  not  be  embar- 
rassed by  statements  generally  found  to  be  deceptive,  or  totally 
false,  there  must  be  some  rule  designating  the  class  of  evidence 
to  be  excluded ;  and  in  this  case,  as  in  determining  the  ages 
of  discretion,  and  of  majority,  and  in  deciding  as  to  the  liability  of 
the  wife,  for  crimes  committed  in  company  with  the  husband,  and 
in  numerous  other  instances,  the  common  law  has  merely  followed 
the  common  experience  of  mankind.  It  rejects  the  testimony  (1.) 
of  parties ;  (2.)  of  persons  deficient  in  understanding ;  (3.)  of 
persons  insensible  to  the  obligations  of  an  oath ;  and  (4.)  of  per- 
sons whose  pecuniary^  interest  is  directly  involved  in  the  matter 
in  issue ;  not  because  they  may  not  sometimes  state  the  truth,  but 
because  it  would  ordinarily  be  unsafe  to  rely  on  their  testimony.^ 


1  4  Inst.  279.  matter  in  dispute  might,  from  the  bias  it 

2  Supra,  §§  14,  15.  creates,  be  an  exception  to  the  credit,  but 
^  "  If  it  be  objected,  that  interest  in  the     that  it  ouglit  not  to  be  absolutely  so  to  the 


382  LAW    OP  EVIDENCE.  [PART   III. 

Other  causes  concur,  in  some  of  these  cases,  to  render  the  persons 
incompetent,  which  will  be  mentioned  in  tlieir  proper  i)laccs.  We 
shall  now  proceed  to  consider,  in  their  order,  each  of  these  classes 
of  persons,  held  incompetent  to  testify  ;  adding  some  observations 
on  certain  descriptions  of  persons,  held  incompetent  in  particular 
cases. 

§  328.  But  here  it  is  proper  to  observe,  that  one  of  the  main 
provisions  of  the  law,  for  securing  the  purity  and  truth  of  oral 
evidence,  is,  that  it  be  delivered  under  the  sanction  of  an  oath. 
]\Ien  in  general  are  sensible  of  the  motives  and  restraints  of  reli- 
gion, and  acknowledge  tlieir  acconnta1)ility  to  that  Being,  from 
whom  no  secrets  arc  hid.  In  a  Christian  country  it  is  presumed, 
that  all  the  members  of  the  community  entertain  the  common 
faith,  and  are  sensible  to  its  influences  ;  and  the  law  founds  itself 
on  this  presumption,  while,  in  seeking  for  the  best  attainable 
evidence  of  every  fact,  in  controversy,  it  lays  hold  on  the  con- 
science of  the  witness  by  this  act  of  religion,  namely,  a  public  and 
solemn  appeal  to  the  Supreme  Being  for  the  truth  of  what  he  may 
utter.  "  The  administration  of  an  oatli  supposes  that  a  moral 
and  religious  accountability  is  felt  to  a  Supreme  Being,  and  this 
is  the  sanction  which  the  law  requires  upon  the  conscience,  before  i 
it  admits  him  to  testify."  ^  |  An  oath  is  ordinarily  defined  to  be  ^ 
a  solemn  invocation  of  the  vengeance  of  the  Deity  upon  the  wit- 
ness, if  he  do  not  declare  the  whole  truth  as  far  as  he  knows  it ;  4 
or,  a  religious  asseveration  by  which  a  person  renounces  the 
mercy,  and  imprecates  the  vengeance  of  Heaven,  if  he  do  not 

competency,  any  more  than  the  friendsliip  tlie  greatest  interest ;  manj^  would  betray 

or  enmity  of  a  party,  whose  evidence  is  the   most   solenm   oWigation   and   pubhc 

offered,  towards  either  of  tlie  parties  in  the  confidence    for    an    interest  very   incon- 

cause,  or  many  otlier  considerations  liere-  isidcrable.     An  imiversal  exchision,  wliere 

after  to  be  intimated ;  the  general  answer  ino   line   sliort    of  this   could   have   been 

may  be  this,  that  in  point  of  authority  no  fdrawn,  preserves  infirmity  from  a  snare, 

distinction  is  more  absolutely  settled  ;  and  land  integrity  from  suspicion;  and  keejis 

in  point  of  theorj',  the  existence  of  a  di-  the  current  of  evidence,  thus  far  at  least, 

rect  interest  is  capable  of  being  precisely  clear  and  uninfected."     1  Gilb.  Evid.  by 

proved ;  but  its  influence  on  the  mind  is  Lofit,  pp.  223,  224. 

of  a  nature  not  to  discover  itself  to  the  ^  AVakefield  v.  Eoss,  5  Mason,  18,  per 

jury  ;  whence  it  hath  been  held  expedient  Story,  J.     See  also  Menochius,  ])e  Pra3- 

to  adopt  a  general  excejjtion,  by  which  sumpt.  lib.  1,  qua^st.  1,  n.  o2,  33;  Farinac. 

witnesses  so  circumstanced  are  free  from  Opera,  tom.  2,  App.  p.  102,  n.  32,  p.  281, 

temptation,  and  the  cause  not  exposed  to  n.  33;  Bynkershoek,  Observ.  Juris  Rom. 

the  hazard  of  the  very  doubtful  estinuite,  lib.  0,  caj).  2. 

what  quantity  of  interest  in  the  cjuestion,  -^  1  Stark.  Evid.  22.  The  force  and  utili- 
in  proportion  to  the  character  of  the  wit-  ty  of  this  sanction  were  familiar  to  the 
ness,  in  any  instance,  leaves  his  testimony  Romans  from  the  earliest  times.  The  sol- 
entitled  to  belief  Some,  indeed,  are  in-  emn  oath  was  anciently  taken  by  this  for- 
capable  of  being  biased  even  latently  by  mula,  the  witness  holding  a  flint  stone  in 


CHAP.  II.]  COMPETENCY   OF   WITNESSES.  383 

speak  the  truth."  ^  ^ut  the  correctness  of  this  view  of  the  nature 
of  an  oath  has  been  justly  questioned  by  a  late  writer,^  on  the 
ground  that  the  imprecatory  clause  is  not  essential  to  the  true 
CW  idea  of  an  oath,  nor  to  the  attainment  of  the  object  of  the  law  in 
requiring  this  solemnity.  The  design  of  the  oath  is  not  to  call 
the  attention  of  God  to  man  ;  l)vit  the  attention  of  man  to  God ;  — 
not  to  call  on  Him  to  punish  the  wrongdoer  ;  but  on  man  to 
remember  that  He  will.  I  That  this  is  all  which  the  law  requires 
is  evident  from  the  statutes  in  regard  to  Quakers,  Moravians,  and 
other  classes  of  persons,  conscientiously  scrupulous  of  testifying 
vmder  any  other  sanction,  and  of  whom,  therefore,  no  other  decla- 
ration is  required.  Accordingly,  an  oath  has  been  well  defined, 
by  the  same  writer,  to  be  "  an  outward  pledge,  given  by  the 
juror"  (or  person  taking  it),  "that  his  attestation  or  promise 
is  made  under  an  immediate  sense  of  his  responsibility  to  God."  ^ 
A  security  to  this  extent,  for  the  truth  of  testimony,  is  all  that  the 
law  seems  to  have  deemed  necessary ;  and  with  less  security  than 
this,  it  is  believed  that  the  purposes  of  justice  cannot  be  accom- 
plished. 

§  329.  And  first^  in  regard  to  parties^  the  general  rule  of  the 
common  law  is,  that  Vi  party  to  the  record^  in  a  *iiiYij-i.f&i4^<  cannot  he 
a  ti'itness  either  for  himself,  or  for  a  co-suitor  in  the  cause.*  The 
rule  of  the  Roman  law  was  the  same.  Omnibus  in  re  propria 
dicendl  testimonii  facultatem  jura  suhmoverunt.^  This  rule  of  the 
common  law  is  founded,  not  solely  in  the  consideration  of  interest, 
but  partly  also  in  the  general  expediency  of  avoiding  the  multi- 
plication of  temptations  to  perjury.  In  some  cases  at  law,  and 
generally  by  the  course  of  proceedings  in  equity,  one  party  may 

his  right  hand :  Sisciensfallo,tiirnmeDiespi-  Everitt,  Cowp.  389.     Tlie  subject  of  oatlis 

ter,  salva  iirbe  arcequp,  bonis  ejia'at,  ut  ego  is   very  fully   and   ably   treated   by   Mr. 

hanc    lapidem.     Adam's   Ant.   247  ;    Cic.  Tyler,  in  his  book  on  (.)atlis,  their  Nature, 

Fam.  P^p.  vii.  1,  12;  12  Law  Mag.  (Lond.)  Origin,  and  History.     Lend.  1834. 

272.     Tbe  early  Christians  refused  to  ut-  i  White's  case,' 2  Leach,  Cr.  Cas.  482. 

ter  any  imprecation  whatever ;  Tyler  on  ^  Tyler  on  Oaths,  pp.  12,  13. 

Oaths,  ch.  6  ;  and  accordingly,  under  the  ^  Tyler  on  Oaths,  p.  15.     See  also  the 

Christian  Emperors,  oaths  were  taken  in  report  of  the  Lords'  Committee,  Id.  In- 

the  simple  form  of  religious  asseveration,  trod.  p.  xiv. ;  3  Inst.  1G5 ;  Fleta,  lib.  5,  c. 

inax-ato  Dei  Omiiipolcntis  nomine,  Cod.  lib.  22  ;  Eortescue,  De  Laud  Leg.  Angl.  c.  2G, 

2,  tit.  4,  1.  41 :  sacrosanct ifs  eranqeliis  tactis,  p.  58. 

Cod.  lib.  8,  tit.  1, 1. 14.     Constantine  added  *  3  BI.  Comm.  871 ;  1  Gilb.  Evid.  by 

in  a  rescript,  —  Jurisjurandi  reliijione  testes,  LoflFt,  p.  221 ;  Frear  v.  Evertson,  20  Johns. 

;))•('((,<!  quani  perhibeant  testimonium,  jamdu-  142. 

dnni  arctari  pnvcipimiis.     Cod.  lib.   4,   tit.  ^  Cod.  lib.  4,  tit.  20,  I.  10.     Nullus  ido- 

20,  1.  9.     See  also  Omichund  v.  Barker,  1  neus  testis  in  re  sua  intelligitur.    Dig.  lib. 

Atk.  21,  48,  per  Ld.  Hardwicke ;   Willes,  22,  tit.  5,  1.  10. 

538,  s.  c. ;  1  Phil.  Evid.  p.  8 ;  Atcheson  v. 


384 


LAW  OF   EVIDENCE. 


[part  III. 


appeal  to  the  conscience  of  the  other,  by  calling  him  to  answer 
interrogatories  upon  oath.  But  this  act  of  the  adversary  may  be 
regarded  as  an  emphatic  admission,  that,  in  that  instance,  the 
} tarty  is  worthy  of  credit,  and  that  his  known  integrity  is  a  suffi- 
cient guaranty  against  the  danger  of  falsclio«d.^  But  where  the 
party  would  volunteer  his  own  oatli,  or  a  co-suitor,  identified  in 
interest  with  him,  would  offer  it,  this  reason  for  the  admission  of 


1  In  several  of  the  United  States,  any 
party,  in  a  suit  at  law,  may  compel  the 
adverse  party  to  appear  and  testify  as  a 
witness.  In  Connecticut,  this  may  be  done 
in  all  cases.  Kev.  Stat.  IHi'J,  tit.  1,  §  142. 
So,  in  Ohio.  Stat.  March  'l:\,  1850,  §§  1, 
2.  In  Micliif;an,  the  applicant  must  tirst 
make  affidavit  that  material  facts  in  his 
case  are  known  to  the  adverse  party,  and 
that  he  luis  no  other  proof  of  them,  in 
which  case  he  may  be  examined  as  to 
those  facts.  Kev.  Stat.  1846,  ch.  102, 
§  lUO.  In  Xew  York,  the  adverse  party 
may  be  called  as  a  witness  ;  and,  if  so,  he 
may  testily  in  his  own  behalf,  to  the  same 
matters  to  which  he  is  examined  in  chief; 
and  if  he  testifies  to  new  matter,  the  party 
calling  him  may  also  testify  to  such  new 
matters.  Kev.  Stat.  vol.  3,  p.  769,  3d 
edit.  The  law  is  the  same  in  Wisconsin. 
Kev.  Stat.  184'J,  eh.  98,  §§  57,  60 ;  [and 
in  New  Jerseji,  Nixon's  Digest  (1855),  p. 
187.]  In  Missouri,  parties  may  summon 
each  other  as  witnesses,  in  justices'  courts ; 
and,  if  the  party  so  summoned  refuses  to 
attend  or  testify,  the  other  jtarty  may  give 
his  own  oath  in  litem.  Kev.  Stat.  1845, 
ch.  93,  §§  24,  25.  [In  Massachusetts  (Acts, 
1857,  chap.  305),  parties  in  all  civil  actions 
and  proceedings,  including  probate  and 
insolvency  proceedings,  suits  in  equity, 
and  all  divorce  suits,  except  those  in 
which  a  divorce  is  sought  for  the  alleged 
criminal,  conduct  of  eitlier  party,  may  be 
admitted  to  testify  in  their  own  tiivor,  and 
may  be  called  as  witnesses  by  the  opposite 
party.  In  all  actions  in  which  the  wife  is 
a  party,  or  one  of  the  parties  to  the  action, 
she  and  her  husbanil  are  competent  wit- 
nesses for  or  against  each  otlier,  but  they 
cann(jt  testify  as  to  private  conversations 
with  each  other.  No  person  so  testifying 
is  compelled  to  criminate  himself;  and  if 
one  of  the  original  parties  to  tlie  contract 
or  cause  of  action  then  in  issue  and  on 
trial,  be  deail,  or  is  shown  to  the  court  to 
be  insane  ;  or  when  an  executor  or  admin- 
istrator is  a  party  to  the  suit  or  proceed- 
ing, the  other  party  cannot  testify,  excejjt 
in  the  last-named  case,  as  to  such  acts 
and  contracts  as  have  been  done  or  made 
since  the  probate  of  tlie  will  or  the  ap- 


pointment of  the  administrator.  The 
depositions  of  such  parties  may  be  taken, 
as  of  other  witnesses,  and  tlie  expense 
thereof  taxed  in  the  bill  of  costs.  The 
laws  relating  to  attesting  witnesses  to 
wills  are  not  affected  by  the  act.  Parties 
are  also,  with  certiun  exceptions,  compe- 
tent witnesses  for  either  party  ;  in  Maine, 
Kev.  Stat.  (1857)  ch.  82,  §§  78-83  ;  in  New 
Hampshire,  Acts  of  1857,  ch.  1952,  pam- 
phlet edition  of  Laws,  p.  1868  ;  in  Vi-rmont, 
Acts  of  1852,  No.  13  (Nov.  23, 1852) ;  Acts 
of  1853,  No.  13  (December  6,  1853);  in 
Rhode  Island,  Kev.  Stat.  (1857)  ch.  187, 
§34;  in  Connecticut,  Tub.  Stat.  (Compila- 
tion of  1854)  p.  95,  §  141;  in  Oliio,  Kev. 
Stat.  (Curwen's  edit.)  vol.  3,  p.  1986,  tit.  x. 
ch.  1,  §§  310-313. 

[The  Massachusetts  Statute  of  1856,  ch. 
188  (repealed  by  act  of  1857,  ch.  305), 
provided  "  where  the  original  party  to  the 
contract  or  cause  of  action  was  dead," 
that  the  other  party  coidd  not  testify.  In 
a  replevin  suit  (Fischer  r.  Morse,  Norfolk 
S.  J.  C.  Oct.  T.  1857,  20  Law  Keporter, 
414),  for  goods,  the  defendant  in  his  answer 
claimed  the  replevied  goods  as  assignee 
in  insolvency  of  a  third  person  now  de- 
ceased. The  plaintiff  contended,  that  the 
insolvent  (the  third  person)  obtained  the 
goods  of  him  by  fraud,  and  therefore 
acquired  no  title,  and  (tiered  himself  as 
witness;  and  it  was  held,  that  he  was  in- 
competent,—  the  original  party  to  the 
cause  of  action  being  dead. 

[The  Connecticut  Statute  provides  that 
no  person  shall  be  disqualified  as  a  wit- 
ness by  reason  of  interest  in  t,he  event  of 
the  suit  whether  as  a  i)arty  or  otherwise. 
Under  this  statute  the  wife  is  held  to  be  a 
competent  witness  for  the  husband.  Mer- 
riam  v.  Ilarttbrd  and  N.  H.  K.  K.  Co.,  20 
C'onn.  354,  363.  For  a  similar  decision  in 
Vermont,  see  Kutland  and  B.  K.  K.  Co. 
V.  Simson's  vVdm'r,  19  Law  Kep.  629. 
See  to  this  i)oint  under  the  Massachusetts 
Statute  of  1856,  which  provided  that  par- 
ties in  all  civil  actions  may  testify,  &c., 
without  the  adilitional  clause  as  to  hus- 
band and  wife  that  is  in  the  Act  of  1857  ; 
(see  supra,)  Uni-ber  i\  Goddard,  20  Law 
Kep.  408,  and  Snell  v.  Westport,  lb.  414, 


CHAP.  II.]  COMPETENCY   OF   WITNESSES.  385 

the  evidence  totally  fails ;  ^  "  and  it  is  not  to  be  presumed  that 
a  man,  who  complains  without  cause,  or  defends  without  justice, 
should  have  honesty  enough  to  confess  it."  ^ 

§  330.  The  rule  of  the  common  law  goes  still  further  in  regard 
to  parties  to  the  record  in  not  conqjelUny  them,  in  trials  by  jury,  to 
give  evidence  for  the  opposite  party,  against  themselves,  either  in 
civil  or  in  criminal  cases.  Whatever  may  be  said  by  theorists, 
as  to  the  policy  of  the  maxim.  Nemo  tenetur  seipstim  prodere,  no 
inconvenience  has  been  felt  in  its  practical  application.  On  the 
contrary,  after  centuries  of  experience,  it  is  still  applauded  by 
judges,  as  "a  rule  founded- in  good  sense  and  sound  policy  ;"3 
and  it  certainly  preserves  the  party  from  tem})tation  to  perjury. 
This  rule  extends  to  all  the  actual  and  real  parties  to  the  suit, 
whether  they  arc  named  on  the  record  as  such  or  not.'* 

§  331.  Whether  corporators  are  parties  within  the  meaning  of 
this  rule  is  a  point  not  perfectly  clear.  Corporations,  it  is  to  be 
observed,  are  classcMl  into  ]ml)lic  or  municipal,  and  private  corpo- 
rations. The  former  are  composed-  of  all  the  inhabitants  of  any 
of  the  local  or  territorial  portions  into  which  the  country  is  divided 
in  its  political  organization.  Such  are  counties,  towns,  boroughs, 
local  parishes,  and  the  like.  In  these  cases,  the  attribute  of  indi- 
viduality is  conferred  on  the  entire  mass  of  inhabitants,  and  again 
is  modified,  or  taken  away,  at  the  mere  will  of  the  legislature, 
according  to  its  own  views  of  public  convenience,  and  without  any 
necessity  for  the  consent  of  the  inhabitants, .though  not  ordinarily 
against  it.  They  are  termed  quasi  corporations  ;  and  are  depend- 
ent on  the  public  will,  the  inhabitants  not,  in  general,  deriving 
any  private  and  personal  rights  under  the  act  of  incorporation  ; 

which  decide  that  the  wife  is  a  competent  upon  what  they  give   in  evidence  ;   and 

witness   if  a  party  to  the  suit,   bvit   not  tlierefore  the  law  removes  them  from  tes- 

otlierwise.J  tiniony,  to  prevent  their  sUding  into  per- 

1  "  For  wliere  a  man,  who  is  interested  jury ;  and  it  can  be  no  injury  to  truth  to 

in   the   matter  in    question,    would    also  remove  those  from   the  jurj-,  whose  tes- 

])rove  it,  it  rather  is  a  ground  for  distrust,  timony   may    hurt   tliemselves,   and   can 

than  any  just  cause  of  behef;  for  men  are  never  induce  any  rational  belief."    1  Gilb. 

generally  so  short-sighted,  as  to  lo(jk  to  Evid.  by  Lofft,  \>.  '1'1'd. 

their  own  private  benefit,  which  is  near  -  1  Gilb.  Evid.  by  LofTt,  p.  243. 

them,   rather   than   to   the    good   of   the  ^  Worrall   v.  Jones,   7  Bing.  395,  per 

world,    '  which,    though    on   the    sum    of  Tinihd,  C.  J. ;  Re.x  v.  Woburn,  10  East, 

things  really  best  for   the   individual,'  is  40o,  per  Lord  Ellenborongh,  C.  J. ;  Com- 

more  remote ;  therefore,  from  the  nature  monwealth  v.  INIarsli,  10  Pick.  57. 

of  human  passions  and  actions,  there  is  .  *  Hex  v.  Woburn,  10  East,  305;  IMau- 

more  reason  to  distrust  such  a  biased  tes-  ran  r.  Lamb,  7  Cowen,  174;  Appleton  v. 

timony  than  to  believe  it.     It  is  also  easy  Boyd,  7  Mass.  131;  Fenn  v.  Granger,  2 

for  persons,  who  are  prejudiced  and  pre-  Campb.  177. 
possessed,  to  put  false  and  unequal  glosses 
VOL.  I.                                                  33 


386 


LAW   OF   EVIDENCE. 


[part   III. 


its  ofBce  and  ol>ject  being  not  to  grant  })rivate  rights,  but  to  regu- 
late the  manner  of  performing  public  duties.^  These  corporations 
sue  and  are  sued  l)y  the  name  of  "the  Inhabitants  of"  such  a 
place ;  each  inhabitant  is  directly  lial)le  in  his  person  to  arrest, 
and  in  his  goods  to  seizure  and  sale,  on  the  execution,  which  may 
issue  against  tlie  collective  body,  by  llint  name;  and  of  course 
each  one  is  a  party  to  the  suit ;  and  his  admissions,  it  seems,  arc 
receivable  iw  evidence,  though  their  value,  as  we  have  seen,  may 
be  exceedingly  liglit.-  Being  parties,  it  would  seem  naturally  to 
follow,  that  these  inhabitants  were  neither  admissible  as  witnesses 
for  themselves,  nor  C()m|)ellal)le  to  testify  against  themselves;  but 
considering  the  jiublic  nature  of  the  suits,  in  which  they  are  par- 
ties, and  of  the  interest  generally  involved  in  them,  the  minute- 
ness of  the  private  and  personal  interest  concerned,  its  contingent 
character,  and  the  almost  certain  failure  of  justice,  if  the  rule 
were  carried  out  to  such  extent  in  its  application,  these  inhabitants 
are  admitted  as  competent  witnesses  in  all  cases,  in  which  the 
rights  and  liabilities  of  the  corporation  only  are  in  controversy. 
But  where  the  inhabitants  are  individually  and  personally  inter- 
ested, it  is  otherwise.'^     Whether  this  exception  to  the  general 


1  Aiifirell  &  Ames  on  Corp.  16,  17; 
Riimfonl  V.  Wood,  13  Mass.  192.  The 
observations  in  the  text  are  applied  to 
American  corporations  of  a  political  char- 
acter. Whether  a  municipal  corjKiration 
can  in  every  case  be  (h-ssolvcd  l)y  an  act 
of  the  legislature,  and  to  what  extent  such 
act  of  dissolution  may  constitutionally 
operate,  are  questions,  which  it  is  not 
necessary  here  to  discuss.  See  Willcock 
on  Municipal  Corporations,  pt.  1,  §  852; 
Terrett  v.  Taylor,  '.)  Cranch,  48,  51 ; 
Dartmouth  Collejie  v.  Woodward,  4  Wheat. 
518,  G2y,  G()3;  [Warren  v.  Charlestown,  2 
Gray,  84,  100.  | 

-   Sujirn,  §  175,  and  note. 

8  Swift's  Evid.  57 ;  Kex  v.  flavor  of 
Lonchm,  2  Lev.  2:31.  Thus,  an  inliabilant 
is  not  competent  to  prove  a  way  by  pre- 
scription for  all  the  inhabitants;  Odiorne 
V.  Wade,  8  Tick.  518 ;  nor  a  right,  in  all 
the  inhabitants  to  take  shell-fish  ;  I.,ufkin 
i\  Haskell,  8  Pick.  oi'M;  tor  in  such  cases, 
by  tlie  conunon  law,  the  record  would  be 
evidence  of  the  custom,  in  tavor  of  the 
witness.  [Hut  see  Look  v.  Bradley,  lo 
Met.  30'J,  372. 1  This  ground  of  objection, 
liowcver,  i«  now  removed  in  England,  by 
Stat.  3  &  4  W.  IV.  c.  42.  tlic  same  prin- 
cii)le  is  ai)i)lied  to  any  private,  joint,  or 
conunon  interest.     Parker  v.  Mitchell,  11 


Ad.  &  EI.  788.  See  also  Prewitt  v.  Til- 
ley,  1  C.  &  P.  140;  Ang.  &  Ames  on 
Corp.  390-394 ;  Connecticut  v  Bradish,  14 
Mass.  296 ;  Gould  v.  .lames,  6  Cowen, 
369;  Jacobson  v.  Fountain,  2  Johns.  170; 
AVcller  v.  The  (lovernors  of  the  Found- 
ling Hospital,  Peake's  Cas.  153 ;  infm, 
§  405.  In  the  English  courts,  a  distinc- 
tion is  taken  between  rated  and  ratahlr  in- 
habihnits,  the  former  being  held  inadmis- 
sible as  witnesses,  and  the  latter  being 
held  competent ;  and  this  distinction  has 
been  recognized  in  some  of  our  own 
courts ;  though  upon  the  grounds  stated 
in  the  text,  it  does  not  seem  appli(Nd)!e  to 
our  institutions,  and  is  now  generally  (hs- 
regarded.  See  Connnonwealth  v.  Baird, 
4  .S.  &  II.  141 ;  Falls  v.  Belknap,  1  Johns. 
486,  491  ;  Corwein  v.  Ilames,  11  Johns. 
76;  Bloodgood  w.  Jamaica,  12  .lohns.  285; 
supra,  §  175,  note,  and  the  cases  above 
cited.  But  in  Kmjland,  rated  inliabitants 
are  now  by  statutes  made  comitetent  wit- 
nesses on  indictments  for  non-repair  of 
bridges  ;  in  actions  against  the  hundred, 
under  the  statute  of  Winton ;  in  actions 
for  riotous  assemblies;  in  actions  against 
churchwardens  for  misapi)lication  of 
funds  ;  in  summary  convictions  under  7 
and  8  Geo.  IV.  c.  29,  30 ;  on  the  trial  of 
indictments  under   the  general  highway 


CHAP.  II.]  COMPETENCY    OF   WITNESSES.  387 

rule  was  solely  created  by  the  statutes,  wliicli  have  heen  passed 
on  this  subject,  or  previously  existed  at  common  law,  of  which  the 
statutes  are  declaratory,  is  not  perfectly  agreed.^  In  either  case, 
the  general  reason  and  necessity,  on  which  the  excei)tion  is 
founded,  seem  to  require,  that  where  inhabitants  are  admissible 
as  witnesses  for  the  corporation,  they  should  also  be  compellable 
to  testify  against  it ;  but  the  point  is  still  a  vexed  question  .^ 

§  332.  Private  corporations,  in  regard  to  our  present  inquiry, 
may  be  divided  into  two  classes,  namely,  pecuniary  or  moneyed  in- 
stitutions, such  as  banks,  insurance,  and  manufacturing  companies, 
and  the  like,  and  institutions,  or  societies  for  religious  and  chari- 
table purposes.  In  the  former,  mcm1)ership  is  obtained  by  the 
purchase  of  stock  or  shares,  without  the  act  or  assent  of  the  cor- 
poration, except  prospectively  and  generally,  as  provided  in  its 
charter,  and  by-laws ;  and  the  interest  thus  acquired  is  private, 
pecuniary,  and  vested,  like  ownership  of  any  other  property.  In 
the  latter,  memljership  is  conferred  by  special  election ;  l)ut  the 
member  has  no  private  interest  in  the  funds,  the  whole  property 
being  a  trust  for  the  benefit  of  others.  But  all  these  are  equally 
corporations  proper;  and  it  is  the  corporation,  and  not  the  indi- 
vidual member,  that  is  party  to  the  record  in  all  suits  by  or  against 
it.^  Hence  it  follows,  that  the  declarations  of  the  members  are 
not  admissible  in  evidence  in  such  actions  as  the  declarations  of 

act  anrl  tlie  general  turnpike  act ;  and  in  Stat.  1845,  eh.  34,  art.  1,  §  25.      In  New 

matters  relatioLT  to  rates  and  cesses.   IMiil.  Jiisiij,  they  are    admissible  in   suits   for 

&  Am.   (in   Evid.    l:]:!-138,  3'J5;   1  Phil,  moneys  to  which  the  cotmty  or  town  is 

Evid.  138-144.     In  the  province  of  New  entitled.     Rev.  Stat.  184tl,  tit.  34,  ch.  9, 

L';7//(.>i»vVA-,  rated  inhabitants  arc  now  made  §5.     See  Stewart  v.  Saybrook,  Wright, 

comjietent   witnesses   in  all  cases  where  374;  Barada  r.  Caimdelet,  8  Miss.  644. 
tlic  town  or  parish  may  in  any  manner  be  ^  Supra,  §  175,  .and  the  cases  cited  in 

artected,  or  wliere  it  may  be  interested  in  note.     See   al.so   I'iiil.    &   Am.    on  Evid. 

a  pecuniary  penalty,  or  where  its  officers,  p.  395,  note  ('!) ;   1  Phil.  Evid.  375  ;  Citj^ 

acting  in  its  behalf,  are  i)arties.     Stat.  9  Council  v.  King,  4  McCord,  487 ;   Mars- 

Vict.  cap.  4,  Marcli  7,   184().      In  several  den  r.  Stansfield,  7  B.  &  C.  815 ;  Rex  f. 

of  the  United  States,  also,  the  inliabitants  Kirdford,  2  East,  559. 
of  counties  and  other  municipal,  territo-  -  In  Rex  r.  Woburn,  10  East,  395,  and 

rial,  or  (ptasi  corporations,  are  exjiressly  Rex  v.  Hardwickc,  11  East,  578,  584,  586, 

declared  by  statutes,  to  be  competent  wit-  589,  it  was  said  that  they  were  not  cora- 

iiesses,  in  all  suits  in  wliiclv  the  corpora-  pellable.      See    accordingly,  Plattekill  v. 

tion  is  a  party.     See  Mniiie,  Rev    Stat.  New  Paltz,  15  Johns.  305. 
1840,  ch.   115,  §75;    Massaclmults,  Rev,  ^  Merchants'   Bank   v.    Cook,   4  Pick. 

Stat.  ch.  94,  §  54;    Vermont,   Rev.  Stat.  405.     It  has  been  held  in  ^  fa  inc.  that  a 

1839,  ch.  31,  §  18;  New  York;  Rev.  Stat,  corprfrator,  or  shareholder  in  a  moneyeil 

vol.  1,  i)p.  408,  439  (3d  edit.) ;   Pennsi/I-  institution,  is  substantially  a  party,  and 

i\ni/(i,    Dunl.    Dig.    pp.    215,    913,     1019,  therefore   is   not    comjiellable    to    testify 

1165;  Miclilqan,  Rev.  Stat.  1846,  ch.  102,  where  the  coriwration  is  party  to  the  rec- 

§  81  ;    Wisconsin,  Rev.  Stat.  1849,  ch.  10,  ord.      Bank    of  Oldtown   r.    Houlton,    8 

§  21;    Id.  ch.  98,  §  49;    Virqinii^i,  Rev.  Shepl.  501.     Shepley,  J.,  dissenting. 
Stat.  1849,  ch.  17G,  §  17 ;  Missouri,  Rev. 


388 


LAW    OF    EVIDENCE. 


[part   III. 


parties,^  tboiigli  where  a  memljcr  or  an  oflReer  is  an  agent  of  the 
corporation,  liis^claratious  may^bg^  a(Imissiblc,_ivg_.pai'lLjaf-.thQ  res 

§  333.  But  the  members  or  stockhohlers,  in  institutions  created 
for  private  emolument,  though  not  parties  to  the  record,  are  not 
tlierefore  admissible  as  ivitnesses  ;  for,  in  matters  in  which  the  cor- 
poration is  concerned,  they  of  course  have  a  direct,  certain,  and 
vested  interest  which  necessarily  excludes  thcm.^  Yet  the  mem- 
hers  of  charitaUe  and  religioiis  societies,  having  no  personal  and 
l)rivate  interest  in  the  property  holdcn  by  the  corporation,  are 
coinpctent  witnesses  in  any  suit  in  whicli  the  corporation  is  a  party. 
On  this  ground,  a  mere  trustee  of  a  savings  bank,  not  being 
a  stockholder  or  a  depositor,^  and  a  trustee  of  a  society  for  the 
instruction  of  seamen,^  and  trustees  of  many  other  eleemosynary 
institutions,  have  been  held  admissible  witnesses  in  such  suits. 
But  where  a  member  of  a  private  cori)oration  is  inadmissible  as 
a  witness  generally,  he  may  still  be  called  upon  to  produce  the 


1  City  Bank  v.  Batenian,  7  liar.  & 
Johns.  iOi,  lO'J  ;  Ilartfonl  Bank  ;;.  Hart, 
o  Day,  491,  495;  Majrill  v.  Kauffnian,  4 
8.  &  li.  •'>i~ ;  Stewart  v.  Huntingdon 
Bank,  11  S.  &  K.  267 ;  Atlantic  Ins.  Co. 
V.  Conaril,  4  Wash.  668,  677 ;  Fairfield 
Co.  Turnpike  Conip.  v.  Thorp,  13  Conn. 
173. 

2  Supra,  §§  108,  113,  114. 

■'  This  rule  extends  to  the  members  of 
all  corporations,  having  a  common  fund 
distributable  amonc;  the  members,  and  in 
which  they  therefore  have  a  private  in- 
terest; the  principle  of  exclusion  apply- 
ing to  all  cases  where  that  private  interest 
would  be  artected.  Doe  d.  Mayor  and 
Burgesses  of  Staflbrd  v.  Tooth,  3  Younge 
&  Jer.  19;  City  Council  v.  King,  4  ^Ic- 
Cord,  487,  488;  Davies  v.  Morgan,  1 
Tyrwh.  457.  Where  a  corporation  would 
examine  one  of  its  members  as  a  witness, 
he  may  be  rendered  competent,  either  b}' 
a  sale  of  his  stock  or  interest,  where 
membership  is  gained  or  lost  in  that  way  ; 
or,  by  being  disfranchised;  which  is  done 
by  an  information  in  the  nature  of  a  </iio 
warranto  against  the  member,  who  con- 
fesses the  information,  on  which  the  plain- 
till'  obtains  judgment  to  disfranchise 'iiim. 

Mayor  of  Colchester  v. ,  1  I'.  Wms. 

595.  Where  the  action  is  against  the  cor- 
poration for  a  debt,  and  the  stockholders 
are  by  statute  made  liable  for  such  debt, 
and  their  property  is  liable  to  seizure 
upon   the   execution   issued   against   the 


corporation,  a  member,  once  liable,  re- 
mains so,  notwithstaniling  his  alienation 
of  stock,  or  disfranchisement,  and  there- 
fore is  not  a  comjictent  witness  for  the 
corporation  in  sucli  action.  Hovev  v. 
The  Mill-Dam  Foundry,  21  Pick.  453. 
But  where  his  liability  to  the  execution 
issued  against  the  corporation  is  not  cer- 
tain, but  depends  on  a  special  order  to  be 
granted  by  the  court,  in  its  discretion,  he 
is  a  com])etent  witness.  Needham  v. 
Law,  12  :\I.  &  W.  560.  The  clerk  of  a 
corjKjration  is  a  competent  witness  to 
identify  its  books  and  verify  its  records, 
although  lie  be  a  member  of  the  corpora- 
tion, and  interested  in  the  suit.  Wiggin 
V.  Lowell,  8  Met.  301.  In  several  of  the 
United  States,  however,  the  members  of 
private  corporations  are  made  competent 
witnesses  by  express  statutes ;  and  in 
others  they  are  rendered  so  by  force  of 
general  statutes,  removing  the  objectiou 
of  interest  from  all  witnesses.  Supra, 
§  331. 

•*  Middletown  Savings  Bank  v.  Bates', 
11  Conn.  519. 

^  Miller  v.  Mariner's  Church,  7  Greenl. 
51.  See  also  Anderson  v.  Brock,  3 
Greenl.  243  ;  Wells  i'.  Lane,  8  Johns.  462 ; 
Giljiin  t'.  Vincent,  9  Johns.  219  ;  Nayson 
r.  Thatcher,  7  Mass.  398;  Cornwell  v. 
Isham,  1  Day,  35 ;  Richardson  v.  Free- 
man, 6  Greeid.  57;  Weller  v.  Foundling 
Hospital,  Peake's  Cas.  153  ;  [Davies  v. 
Morris,  17  Penn.  St.  R.  205.1 


CHAP.  II.]  COMPETENCY    OF   WITNESSES.  389 

corporate  documents,  in  an  action  against  the  corporation  ;  for  lie 
is  a  mere  depositary,  and  the  party  objecting  to  his  competency  is 
still  entitled  to  inquire  of  him  concerning  the  custody  of  the  docu- 
ments.i  And  if  a  trustee,  or  other  member  of  an  eleemosynary 
corporation,  is  liable  to  costs,  this  is  an  interest  which  renders 
him  incompetent,  even  though  he  may  have  an  ultimate  remedy 
over  .2 

§  334.  The  rule,  by  which  parties  are  excluded  from  being 
witnesses  for  themselves,  applies  to  the  case  of  Jmshancl  and  ivife; 
neither  of  them  being  admissible  as  a  witness  in  a  cause,  civil  or 
criminal,  in  which  the  other  is  a  party.^  This  exclusion  is  founded 
partly  on  the  identity  of  their  legal  rights  and  interests,  and  partly 
on  principles  of  public  policy,  which  lie  at  the  basis  of  civil  society. 
For  it  is  essential  to  the  happiness  of  social  life,  that  the  confi- 
dence subsisting  between  husband  and  wife  should  be  sacredly 
protected  and  cherished  in  its  most  unlimited  extent ;  and  to  break 
down  or  impair  the  great  principles  which  protect  the  sanctities 
of  that  relation  would  be  to  destroy  the  best  solace  ^f  human 
existence.* 

§  335.  The  principle  of  this  rule  requires  its  application  to  all 
cases,  in  which  the  interests  of  the  other  party  are  involved.  And 
therefore,  the  wife  is  not  a  jcornpetent  witness  against  any  co- 
defendant,  tried  mthliexi>Jlsband,i^^^  testimony  concern  the 
husband,  though  it  be  not  directly  given  against  him.^     Nor  is 

1  Rex  V.  Inhabitants  of  Netherthong,  for,  but  not  against  eacli  other,  in  crimi- 

2  M.  &  S.  237;    Wilcock  on  Municipal  nal  prosecutions.    Code  of  1851,  art.  2391. 

Corp.   309 ;    Wiggin   v.   Lowell,  8  Met.  *  Stein  v.  Bowman,  13  Peters,  223,  per 

301.  McLean,  J.;    supra,  §  254;    Co.  Lit.j6, 

-  Rex   V.    St.   Mary   Magdalen,    Ber-  b.  ;    Davis  v.  Dinwoody,  i   T.  R.  678 ; 

niondsey,  3  East,  7.  Barker  v.  Dixie,  Cas.  temp.  Hardw.  2G4 ; 

'^  An  exceptii)n  or  qualification  of  this  Bentley  v.  Cooke,  3  Doug.  422,  per  Ld. 

rule  is  admitted,  in  cases  wliere  tlie  lius-  Mansfield.  The  rule  is  the  same  in  equity, 

band's  account-books  have  been  kept  b}'  Vowles  v.   Young,  13  Ves.  144.      So   is 

tbe  wife,  and  are  ottered  in  evidence  in  the  law  of  Scotland.     Alison's  Practice, 

an  action  brought  by  him  for  goods  sold,  p.  461.    See  also  2  Kent,  Coumi.  179, 180; 

&c.     Here  the  wife  is  held  a" competent  Commonwealth  v.  Marsh,    10   Pick.   57; 

witness,  to  testify  that  she  made  the  en-  Robbius  v.  King,  2  Leigh,  Com.  R.  142, 

tries  bv  his  direction  and  in  his  presence  ;  144 ;    Snyder  v.    Snyder,   6   Binn.   488  ; 

after  which  his  own  suppletory  oath  may  Corse  v.  Patterson,  6  Har.  &  Johns.  153  ; 

he  received,  as   to   tlie   times  when   the  Barbat  i\  Allen,  7  Exchr.  609. 

charges  were  made,  and   that   they   are  ^  Hale,  P.  C.  301 ;  Dalt.  Just.  c.  Ill  ; 

iust  and  true.    Littlefield  v.  Rice,  10  Met.  Rex  v.  Hood,  1  Mood.  Cr.  Cas.  281 ;  Rex 

2S7.     And  see  Stanton  v.  Wilson,  3  Day,  v.  Smitli,  Id.  289.     [The  husband  is  not  a 

37  ;  Smith   v.  Sanford,  12  Pick.  139.     In  competent  witness  for  or  against  the  trus- 

tbe  principal  case,  the  correctness  of  the  tee  of  tlie  wite's  separate  estate,  in  a  suit 

contrary  decision  in   Carr   v.  Cornell,   4  between  the  trustee  .and  a  third  person  in 

Venn.  116,  was  denied.     In  Iowa,  bus-  regard  to  the  trust  estate.     Hasbrouck  v. 

band  and  wife  are  competent   witnesses  Vandervort,  5  Selden,  153.] 

33* 


390  LAW   OF   EVIDENCE.  [PART  III. 

she  a  witness  for  a  co-defendant,  if  her  testimony,  as  in  the  case 
of  a  conspiracy,^  would  tend  directly  to  her  husband's  acquittal ; 
nor  where,  as  in  the  case  of  an  assault,^  the  interests  of  all  the 
defendants  arc  inscparaljle  ;  nor  in  any  suit  in  which  the  rights 
of  her  husband,  though  not  a  party,  would  be  concluded  by  any 
verdict  therein  ;  nor  may  she,  in  a  suit  between  others,  testify  to 
any  matter  for  which,  if  true,  her  husband  may  be  indicted.^  Yet 
where  the  grounds  of  defence  are  several  and  distinct,  and  in  no 
manner  dependent  on  each  other,  no  reason  is  perceived  why  the 
wife  of  one  defendant  should  not  be  admitted  as  a  witness  for 
another.* 

§  336.  It  makes  no  difference  at  ivJiat  time  the  relation  of  husband 
and  wife  commenced;  the  principle  of  exclusion  being  applied  in 
its  full  extent,  wherever  the  interests  of  either  of  them  are  directly 

I  concerned.  Thus,  where  the  defendant  married  one  of  the  plain- 
tiff's witnesses,  after  she  was  actually  summoned  to  testify  in  the 
suit,  she  was  held  incompetent  to  give  evidence.^  Nor  is  there 
any  difference  in  principle  between  the  admissibility  of  the  hus- 
band and  that  of  the  wife,  where  the  other  is  a  party.^  And  when, 
in  any  case,  they  arc  admissible  against  each  other,  they  are  also 
admissible  for  each  other." 

§  387.  Neither  is  it  material,  that  this  relation  no  longer  exists. 
The  great  object  of  the  rule  is  to  secure  domestic  happiness,  by 

1  Eex  V.  Locker,  5  Esp.  107,  per  Ld.  by  showing  that  that  witness  was  mis- 

Ellenborough,  who  said  it  was  a  clear  rule  taken  in  a  material  fact.     Rex  v.  Smith, 

of  the  law  of  England.    The  State  v.  Bur-  1  Jlood.  Cr.  Cas.  289.     If  the  conviction 

lingham,  3  Shepl.  104;  [Commonwealth  of  a  prisoner,  «7«/?)f;Mvhom  she  is  called, 

V.    Robinson,    1    (iray,    555,   55',).  j      But  will  strengthen  the  hope  of  pardon  for  her 

where  several  are  jointly  indicted  for  an  husband,  who  is  already  convicted,  this 

offence,  which  might  have  been  commit-  goes  only  to  her  credibility.    Hex  v.  Kudd, 

ted  either  by  one  or  more,  and  they  are  1  Leach,   135,   151.     Where  one  of  two 

tried  separately,  it  has  been  held  that  the  persons,  separately  indicted  for  the  same 

wife  of  one  is  a  competent  witness  for  the  larceny,  has  been  convicted,  his  wife  is  a 

others.     The  Commonwealtlw.  Manson,  competent  witness  against  the  other.    Ke- 

2  Ashm.  31 ;    The  State  v.  Worthing,  1  gina  v.  Williams,  8  C.  &  P.  284. 

liedington,  G2  ;  in  frit,  §  363,  note.      But  ^  Pedley  v.  Wellesley,  3  C.  &_P.  558. 

see  PuUen  r.  The  People,  1  Doug.  Michi-  T  ' 
gan,  li.  48.                                                      C\.  ? 

■^  Rex  V.  Frederic,  2  Stra.  1095.     [See  '^ 
State  V.  Worthing,  31  Maine,  62;  infra, 
§  363,  note.] 

3  Den  d.  Stewart  v.  Johnson,  3  Harri-  §  418. 

son,  88.  ^  Rex  v.  Serjeant,  1  Ry.  &   M.  352. 

*  Phil.  &  Am.  on  Evid.  160,  n.  (2) ;  1  In  this  case,  the  husband  was,  on   this 

Phil.  Evid.   75,  n.   (1).      But  where  the  ground,   held   incompetent  as   a  witness 

wife  of  one  prisoner  was  called  to  prove  against    the   wife,    upon    an    indictment 

an  alihi  in  favor  of  another  jointly  indict-  against  her  and  others  for  conspiracy,  iu 

ed,  she  was    heU    incompetent,  on    the  procuring  him  to  marry  her.  ^ 

ground  that  her  evidence  went  to  weaken  ''  Rex  v.  Serjeant,  1  Ry.  &  M.  352. 
that  of  the  witness  against  her  husband, 


This  case  forms  an  exception  to  the  gen- 
ral  rule,  that  neither  a  witness  nor  a 
party  can,  by  his  own  act,  deprive  the 
)ther  party  of  a  right  to  the  testimony  of 
;he    witness.      See   supra,   §  167 ;    infra, 


CHAP.  II.]  COMPETENCY   OF   WITNESSES.  391 

placing  the  protecting  seal  of  tlie  law  upon  all  confidential  com- 
munications between  husband  and  wife ;  and  wliatevcr  has  come 
to  the  knowledge  of  either  by  means  of  the  hallowed  confidence 
which  that  relation  inspires,  cannot  be  afterwards  divulged  in 
testimony,  even  though  the  other  party  be  no  longer  living. ^  And 
even  where  a  wife,  who  had  been  divorced  by  act  of  parliament, 
and  had  married  another  person,  was  offered  as  a  witness  by  the 
plaintiff,  to  prove  a  contract  against  her  former  husband.  Lord 
Alvanleyheld  her  clearly  incom])ctcnt ;  adding,  with  his  charac- 
teristic energy,  —  "  it  never  shall  be  endured,  that  the  confidence, 
which  the  law  has  created  while  the  parties  remained  in  the  most 
intimate  of  all  relations,  shall  be  broken,  whenever,  by  the  mis- 
conduct of  one  party,  the  relation  has  been  dissolved."  ^ 

§  338.  This  rule,  in.  its  spirit  and  extent,  is  analogous  to  that 
which  excludes  confidential  communications  made  hy  a  client  to 
his  attorney,  and  wliich  has  been  already  considered.^  Accord- 
ingly, the  wife,  after  the  death  of  the  husband,  has  been  held 
competent  to  prove  facts  coming  to  her  knowledge  from  other 
sources,  and  not  by  means  of  her  situation  as  a  wife,  notwithstand- 
ing they  related  to  the  transactions  of  her  husband.* 

339.  Tliis  rule  of  protection  is  extended  only  to  lawful  marriages, 
or  at  least  to  such  as  are  innocent  in  the  eye  of  the  law.  If  the 
cohabitation  is  clearly  of  an  immoral  character,  as,  for  example, 
in  the  case  of  a  kept  mistress,  the  parties  are  competent  witnesses 
for  and  against  eadi  other.^  On  the  other  hand,  upon  a  trial  for 
polygamy,  the  first  marriage  being  proved  and  not  controverted,  the 
woman,  with  whom  the  second  marriage  was  had,  is  a  competent 

1  Stein  V.  Bowman,  13  Peters,  209.  from  each  otlier,  under  articles.     See  fur- 

2  Monroe  v.  Twistleton,  Poalve's  Evid.  ther,  supra,  §  254 ;  The  State  v.  Jolly,  3 
App.  Ixxxvii.  [xci.]  expounded  and  con-  Dev.  &  Bat.  110;  Barnes  v.  Caraack,  1 
firmed  in  Aveson  v.  Ld.  Kinnaird,  6  East,  Barb.  392.  [In  an  action  on  the  case 
192,  193,  per  Ld.  Ellonbon)iis,di,  and  in  brought  by  a  husl)and  for  criminal  con- 
Doker  v.  Hasler,  Ry.  &  M.  198,  per  Best,  versation  with  his  wife,  tlie  latter,  after  a 
C.  J. ;  Stein  v.  Bowman,  13  Peters,  223.  divorce  from  tlie  bonds  of  matrimony,  is 
In  tlie  case  of  Beveridge  r.  Minter,  1  C.  a  competent  witness  in  favor  of  the  hus- 
&  P.  304,  in  which  the  widow  of  a  de-  band,  to  prove  the  charge  in  the  declara- 
ceased  promisor  was  ailmitted  by  xVbbott,  tion.  Dickerman  v.  Graves,  6  Cush.  308 ; 
C.  J.,   as   a  witness  for  the  plaintiff  to  infra,  §  344,  note.] 

prove  the  promise,  in  an  .action  against  '^  Supra,  §§  240,  243,  244,  338. 
lier  husband's  executors,  the  principle  of  •*  Cotfin  i'.  .hmes,  13  Pick.  445;  Wil- 
the  rule  does  not  seem  to  have  received  liams  v.  Baldwin,  7  Verm.  506  ;  Cornell 
any  consideration ;  and  tiie  i)oint  was  not  v.  Vanartsdalen,  4  Barr,  304 ;  Wells  v. 
saved,  the  verdict  being  for  the  defen-  Tucker,  3  Binn.  3G6.  And  see  Saunders 
dants.  See  also  Terry  i'.  Belcher,  1  Bai-  v.  Heudrix,  5  Ala.  224 ;  McGuire  v.  Ma- 
ley's  R.  5G8,  that  the  rule  excludes  the  loney,  1  B.  Monr.  224. 
testimony  of  a  husband  or  wife  separated  ^  Batthews  v.  Galindo,  4  Bing.  610. 


392 


LAW   OF   EVIDENCE. 


[PAKT   III. 


^tncss  ;  for  the  second  marriage  is  void.^  But  if  the  proof  of  the 
first  marriage  were  doiihtful,  and  the  fact  were  controverted,  it  is 
conceived  that  she  woukl  not  he  admitted.^  It  seems,  however, 
that  a  repntcd  or  supposed  wife  may  he  examined  on  the  voir 
dire,  to  facts  showing  the  invahdity  of  the  marriage.-^  Wliether 
a  woman  is  admissible  in  favor  of  a  man,  with  whom  she  lias 
cohabited  for  a  long  time  as  his  wife,  whom  he  has  constantly 
represented  and  acknowledged  as  such,  and  by  whom  he  has  had 
children,  has  been  declared  to  be  at  least  doubtful.^  Lord  Kenyon 
rejected  such  a  witness,  when  offered  by  the  prisoner,  in  a  capital 
case  tried  before  him ;  ^  and  in  a  later  case,  in  which  his  decisions 
were  mentioned  as  entitled  to  be  held  in  respect  and  reverence, 
an  arbitrator  rejected  a  witness  similarly  situated ;  and  the  court, 
abstaining  from  any  opinion  as  to  her  comj)etency,  confirmed  the 
award,  on  the  ground  that  the  law  and  fact  had  both  been  sub-, 
mitted  to  the  arbitrator.^  It  would  doubtless  be  incompetent  for 
another  person  to  offer  the  testimony  of  an  acknowledged  wife,  on 
the  ground  that  the  parties  were  never  legally  married,  if  that 
relation  were  always  recognized  and  believed  to  be  lawful  by  the 
parties.  But  where  the  parties  had  lived  together  as  man  and 
wife,  believing  themselves  lawfully  married ;  but  had  separated 
on  discovering  that  a  prior  husband,  supposed  to  be  dead,  was 
still  living ;  the  woman  was  held  a  competent  witness  against  the 
second  husband,  even  as  to  facts  communicated  to  hci'  by  him 
durino-  their  cohabitation.'' 


1  Bull.  N.  P.  287. 

2  If  the  fact  of  tlie  second  marriage  is 
in  controvers}',  the  same  principle,  it 
seems,  will  exclude  the  second  wife  also. 
See  2  Stark.  Evid.  400 ;  Grigg's  case,  T. 
Kaym.  1.  But  it  seems,  tliat  the  wife, 
though  inadmissible  as  a  witness,  may  be 
produced  in  court  for  the  purpose  of  being 
identified,  althougli  the  proof  thus  fur- 
nished may  affix  a  criminal  charge  upon 
tlie  husband  ;  as,  for  example,  to  show 
that  she  was  the  i)erson  to  wliom  he  was 
first  married ;  or,  who  passed  a  note, 
which  he  is  charged  with  having  stolen. 
Alison's  Pr.  p.  468. 

3  Peat's  case,  2  Lew.  Cr.  Cas.  288; 
Wakefield's  case,  Id.  27'J. 

*  1  Price,  HH,  S'.),  per  Thompson,  C.  B. 
If  a  woman  sue  as  a  feme  sole,  her  hus- 
l>and  is  not  admissible  as  a  witness  for  the 
defendant,  to  prove  her  a  feme  covert, 
thereby  to  nonsuit  her.   Bentley  o.  Cooke, 


Tr.  24  Geo.  ni.,  B.  R.,  cited  2  T.  R.  265, 

269 ;  3  Doug.  422,  s.  c. 

"  Anon,  cited  by  Richards,  B.,  in  1 
Price,  m. 

"  Campbell  v.  Twemlow,  1  Price,  81, 
88,  90,  91.  Richards,  B.,  observed,  that 
he  should  certainly  liave  done  as  the  ar- 
bitrator did.  To  admit  the  witness  in 
such  a  case  would  botli  encourage  immo- 
rality, and  enal)le  tlie  jiarties  at  their 
pleasure  to  perpetrate  fraud,  by  admitting 
or  denying  the  nuirriage,  as  nuiy  suit 
their  convenience.  Hence,  cohabitation 
and  acknowledgment,  as  husband  and 
wife,  are  held  conclusive  against  the  par- 
ties, in  all  cases,  except  where  the  fact  or 
the  incidents  of  marriage,  such  as  legiti- 
nuicy  and  inheritance,  are  directly  in  con- 
troversy. See  also  DivoU  v.  Leadbetter, 
4  Pick.  220. 

7  Wells  V.  Fletcher,  5  C.  &  P.  12; 
Wells  V.  Fisher,  1  M.  &  R.  99,  and  note. 


CHAP.  II.]  COMPETENCY   OF   WITNJ!:SSES.  393 

§  340.  Whether  the  rule  may  be  relaxed,  so  as  to  admit  the 
wife  to  testily  against  the  husband,  hy  his  consent,  the  authorities 
are  not  agreed.  Lord  Ilardwickc  was  of  opinion  that  she  was  not 
admissible,  even  with  the  husband's  consent  ;i  and  this  opinion 
has  been  followed  in  this  country ;  ^  apparently  upon  the  ground, 
that  the  interest  of  the  husband  in  preserving  the  confidence 
reposed  in  her  is  not  the  sole  foundation  of  the  rule,  the  public 
having  also  an  interest  in  the  preservation  of  domestic  ])eace, 
which  might  be  disturbed  by  her  testimony,  notwithstanding  his 
consent.  Tlie  very  great  temptation  to  perjury,  in  such  case,  is 
not  to  be  overlooked.-^  But  Lord  Chief  Justice  Best,  in  a  case 
before  him,"^  said  he  would  receive  the  evidence  of  the  wife,  if  her 
husband  consented ;  apparently  regarding  only  the  interest  of  the 
liusband  as  the  ground  of  her  exclusion,  as  he  cited  a  case,  where 
Lord  Mansfield  had  once  permitted  H  plaintifif  to  be  examined  with 
his  own  consent. 

§  341.  Where  the  husband  or  wife  is  not  a  party  to  the  record, 
but  yet  has  an  interest  directly  involved  in  the  suit,  and  is  therefore 
incompetent  to  testify,  the  other  also  is  incompetent.  Thus,  the 
wife  of  a  bankrupt  cannot  be  called  to  prove  the  fact  of  his  bank- 
ruptcy.^ And  the  husband  cannot  be  a  witness  for  or  against  his 
wife,  in  a  question  touching  her  separate  estate,  even  though  there 
are  other  parties,  in  respect  of  whom  he  would  be  competent.*' 
So,  also,  where  the  one  party,  though  a  competent  witness  in  the 
cause,  is  not  bound  to  answer  a  particular  question,  because 
the  answer  woidd'  directly  and  certainly  expose  him  or  her  to 
a  criminal  proseciition  and  conviction,  the  other,  it  seems,  is  not 
ohliyed  to  answer  the  same  question.'     The  declarations  of  husband 

1  Barker  v.  Dixie,  Cas.  temp.  Ilardw.  further  Hatfield   v.   Thorp,    5  B.  &  Aid. 

264;    Sedgwick  v.  Walking,   1   Ves.  4U;  589;  Cornish  v.  Pugh,  8  I).  &R.  65;  12 

Grigg's  case,  T.  Raym.  1.  Vin.  Abr.  Evidence,  B.     If  an  attesting 

-  Randall's  case,  5  City  Hall  Ree.  141,  witness  to  a  will  afterwards  marries  a  fe- 

153,   154.      See   also  •  Colbern's    case,   1  male  legatee,  tlie  legacy  not  being  given 

Wlieeler's  Crim.  Cas.  479.  to  her  separate  use,  lie  is  inadmissible  to 

**  Davis  V.  Dinwoody,  4  T.  R.  679,  per  prove  the  will.    Mackenzie  v.  Yeo,  2  Curt. 

Lord  Kenyon.  509.     The  wife  of  an  executor  is  also  in- 

*  Pedley  v.  Wellesley,  3  C.  &  P.  558.  competent.     Young  v.   Richard,  Id.  371. 

^  Ex  parte  James,  1  P.  Wms.  610,  611.  But  wliere  the  statute  declares  the  legacy 
But  she  is  made  competent  by  statute,  to  void  which  is  given  to  an  attesting  wit- 
make  discovery  of  his  estate.  6  Geo.  IV.,  ness  of  a  will,  it  has  been  held,  that  if  the 
c.  16,  §  37.  husband  is  a  legatee  and  the  wife  is  a  wit- 

8  1  Burr.  424,  per  Lord  ^lansfield  ;  Da-  ness,  tlie  legacy  is  void,  and  the  wife  is 

vis  V.  Dinwoody,  4  T.  R.  678 ;  Snyder  v.  admissible.      Winslow     v.     Ivimball,    12 

Snyder,  6  Binn.  483;  Langley  i'.  Fisher,  Shepl.  493. 

6  Beav.  443.    But  where  the  interest  is         ''  See  Phil.  &  Am.  on  Evid.  168 ;  Den 

contingent  and  uncertain,  he  is  admissible,  v.  Joluison,  3  Harr.  87. 
Richardson  v.  Learned,  10  Pick.  261.   See 


594 


LAW   OF   EVIDENCE. 


[part   III. 


and  wife  are  subject  to  the  same  rules  of  exclusion  wliicli  govern 
their  testimony  as  witnesses.^ 

§  342.  But  though  the  husband  and  wife  arc  not  admissible  as 
witnesses  against  each  other,  where  either  is  directly  interested  in 
the  event  of  the  proceeding,  whether  civil  or  criminal ;  yet  in  col- 
lateral proceedincjs,  not  immediately  affecting  their  mutual  interests, 
their  evidence  is  receivable,  notwithstanding  it  may  tend  to  crimi- 
nate, or  may  contradict  the  other,  or  may  subject  the  other  to 
a  legal  demand.^  Thus,  where,  in  a  question  upon  a  female 
pauper's  settlement,  a  man  testified  that  he  was  married  to  the 
pauper  upon  a  certain  day,  and  another  woman,  being  called  to 
prove  her  own  marriage  with  the  same  man  on  a  previous  day, 
was  objected  to  as  incompetent,  she  was  held  clearly  admissible 
for  that  purpose ;  for  though,  if  the  testimony  of  both  was  true, 
the  husband  was  chargeable  with  the  crime  of  bigamy,  yet  neither 
the  evidence,  nor  the  record  in  the  present  case,  could  be  received 
in  evidence  against  him  upon  that  charge,  it  being  res  inter  alios 
acta,  and  neither  the  husband  nor  the  wife  having  any  interest  in 
the  decision.^     So,  where  the  action  was  by  the  indorsee  of  a  bill 


^  Alban  v.  Pritcliett,  G  T.  K.  080 ; 
Denn  ;;.  White,  7  T.  R.  112; .  Kellv  v. 
Small,  2  Esp.  71G  ;  Bull.  N.  P.  28;  Wins- 
more  V.  Greenbank,  Willes,  577.  Wiiethcr, 
where  the  iiu:>banil  and  wife  are  jointly 
indicted  for  a  joint  ollence,  or  are  other- 
wise joint  parties,  their  deckrations  are 
mutually  receivable  against  each  other,  is 
still  questioned;  tJae..gCiiei;aLjru].ej._as_to 
persons  jointly  concerned,  being  in  favor 
of  their  admissibility,  and  the  policy  of 
the  law  of  husband  and  wife  being  against 
it.  ISee  Commonwealth  v.  liobbins,  8 
Pick.  0;i ;  Commonwealth  v.  Briggs,  5 
Pick.  42'.J ;  Kvans  v.  Smith,  5  Monroe, 
3G3,  3G4;  Turner  v.  Coe,  5  Conn.  93. 
The  declarations  of  the  wife,  however, 
are  admissible  for  or  against  the  husband, 
wherever  they  constitute  part  of  the  res 
ges/ic  which  are  material  to  be  proved  ;  as, 
wliere  lie  obtained  insurance  on  her  life  as 
a  person  in  health,  she  being  in  fact  dis- 
eased. Averson  v.  Lord  Kinnaird,  G  East, 
188 ;  or,  in  an  action  by  him  against  an- 
other for  beating  her,  Tiiompson  v.  Free- 
man, Skin.  402 ;  or,  for  enticing  her  away, 
Gilchrist  r.  Bale,  8  Watts,  355 ;  or,  in  an 
action  against  him  for  her  board,  he  hav- 
ing turned  her  out  of  doors,  Walton  v. 
Green,  1  C.  &  P.  G21.  So,  where  she 
acted  as  his  agent,  supm,  §  334,  n. ; 
Thomas  v.  Hargrave,  AVriglit,  5'J5.  But 
her  declarations  made  alter  marriage,  ia 


respect  to  a  debt  previously  due  by  her, 
are  not  admissible  for  the  creditor,  in  an 
action  against  the  husband  and  wife,  for 
the  recovery  of  that  debt.  Brown  v.  La- 
selle,  G  P.lackf.  147. 

^  Fitch  i-.  Hill,  11  ]\rass.  280 ;  Baring 
V.  Boeder,  1  Hen.  &  Mun.  154,  108,  per 
lloane,  J.  In  Griffin  v.  Brown,  2  Pick. 
308,  speaking  of  the  cases  cited  to  this 
point,  Parker,  C.  J.,  said  :  "  They  estab- 
lish this  principle,  that  tlie  wife  ni;iy  be  a 
witness  to  excuse  a  i)arty  sucil  for  a  sup- 
posed liability,  although  the  elR'ct  of  lier 
testimony  is  to  charge  her  husband  upon 
the  same  debt,  in  an  action  afterwards  to 
be  brought  against  him..  And  the  reason 
is,  that  the  verdict  in  the  action,  in  which 
she  testifies,  cannot  be  used  in  the  action 
against  lier  husltand  ;  so  that,  although 
her  testinu)!!}'^  goes  to  show  that  he  is 
chargeable,  yet  he  cannot  be  prejudiced 
by  it.  And  it  may  be  observed,  that,  in 
these  very  cases,  the  husband  himself 
would  be  a  competent  witness,  if  he  were 
willing  to  testity,  for  his  evidence  would 
be  a  confession  against  himself."  AVil- 
liams  V.  Johnson,  1  Stra.  504 ;  Vowles  v. 
Young,  13  Ves.  144;  2  Stark.  Evid.  401. 
See  also  Mr.  Hargrave's  note  [2U]  to  Co. 
Lit.  6  b. 

3  Rex  V.  Bath  wick,  2  B.  &  Ad.  039, 
647;  Rex  v.  All  Saints,  0  M.  &  S.  194, 
S.  P.    Ill  this  case,  the  previous  decisioQ 


CHAP.  II.]  COMPETENCY   OF   WITNESSES.  395 

of  exchange,  against  the  acceptor,  and  the  defence  was,  that  it  had 
been  fraudulently  altered  by  the  drawer,  after  the  acceptance ; 
the  wife  of  the  drawer  was  held  a  competent  witness  to  prove  the 
alteration.^ 

§  343.  To  this  general  rule,  excluding  the  husband  and  wife  as 
witnesses,  there  are  some  exceptions;  which  are  allowed  from  the 
necessity  of  the  case,  partly  for  the  protection  of  the  wife  in  her 
life  and  liberty,  and  partly  for  the  sake  of  public  justice.  But  the 
necessity  which  calls  for  this  exception  for  the  wife's  security  is 
described  to  mean,  "  not  a  general  necessity,  as  where  no  other 
witness  can  be  had,  but  a  particular  necessity,  as  where,  for  in- 
stance, the  wife  would  otherwise  be  exposed,  without  remedy,  to 
personal  injury."  ^  Thus,  a  woman  is  a  competent  witness  against 
a  man  indicted  for  forcible  abduction  and  marriage,  if  the  force 
were  continuing  upon  her  until  the  marriage ;  of  which  fact  she 
is  also  a  competent  witness  ;  and  this,  by  the  weight  of  the  authori- 
ties, notwithstanding  her  subsequent  assent  and  voluntary  cohabi- 
tation ;  for  otherwise,  the  offender  would  take  advantage  of  his 
wrong.3  gQ^  sl^e  jg  ^  competent  witness  against  him  on  an  indict- 
ment for  a  rape,  committed  on  her  own  person  ;*  or,  for  an  assault 
and  battery  upon  her ;  ^  or,  for  maliciously  shooting  her.^  She 
may  also  exhibit  articles  of  the  peace  against  him ;  in  which  case 
her  affidavit  shall  not  be  allowed  to  be  controlled  and  overthrown 
by  his  own.''     Indeed,  Mr.  East  considered  it  to  be  settled,  that 

in  Rex  v.  Cliviger,'^  T.  R.  263,  to  the         ^  i  East's  P.  C.  454 ;  Brown's  case,  1 

efieot,  that  a  wife  was  in  every  case  in-  Ventr.    243 ;    1   Russ.   on    Crimes,   572 ; 

conii)eteut  to  give  evidence,  even  t(-ndin(]  Waliefield's   case,  2  Lewin,   Cr.   Cas.   1, 

to  criminate  her  husband,  was  considered  20,  279.     See  also  Regina  v.  Yore,  1  Jebb 

and  restricted;    Lord    Ellenborough    re-  &  Symes,  R.  503,  572  ;  Perry's  case,  cited 

marking,   that   the   rule    was   there    laid  in  McNally's  Evid.  181 ;  Rex  v.  Serjeant, 

down  "  somewhat  too  largely."     In  Rex  Ry.  &  M.  352 ;  1  Hawk.  P.  C.  c.  41,  §  13 ; 

V.  Bathwick,  it  was  held  to  be  "  undoubt-  2  Russ.  on  Crimes,  605,  606.-    This  case 

edly  true  in  the  case  of  a  direct  charge  may  be   considered  anomalous ;    for  she 

and  proceeding  against  him  for  any  of-  can   hardly  be  said  to   he   his  wife,  the 

lence,"  but  was  denied  in  its  application  marriage  contract  having  been  obtained 

to  collateral  matters.     But  on  the  trial  of  -by  force.     1   Bl.  Comm.  443;   McXally's 

a  man  for  the  crime  of  adultery,  the  hus-  E"vid.   179,   180 ;   3  Chitty's    Crim.  Law, 

band  of  the  woman  with  whom  the  crime  817,  note  (y) ;  Roscoe's  Crim.  Evid.  115. 
was  alleged  to  have  been  committed,  has  *  Ld.  Audley's  case,  3  Howell's  St.  Tr. 

been  held  not  to  be  admissible  as  a  witness  402,  413;  Ilutton,  115,  116;  Bull.  N.  P. 

for  the  prosecution,  as  his  testimony  would  287. 

go  directlv  to  charge  the  crime  upon  his  ^  Lady  Lawley's  case.  Bull.  N.  P.  287; 

wife.     Tlie  State  i\  Welch,  13  Shepl.  30.  Rex  v.  Azire,  1  Stra.  G33 ;  Soule's  case,  5 

1  Henman  v.  Dickenson,  5  Bing.  183.  Greenl.  407;  The  State  v.  Davis,  3  Bre- 

2  Bentlev  v.  Cooke,  3  Doug.  422,  per  vard,  3. 

Ld.  Mansfield.     In  Sedgwick  r.  Walkins,  ^  Whitehouse's  case,  cited  2  Russ.  oa 

1  Ves.  49,  Ld.  Thurlow  spoke  of  this  ne-  Crimes,  606. 

cessity  as  extending  only  to  security  of  •  Rex  v.  Doherty,  13  East,  171 ;  Lord 

the  peace,  and  not  to  an  indictment.  Vane's  case,  Id.  note  (a) ;  2  Stra.  1202; 


396  LAW    OF    EVIDENCE.  [pART    III. 

'.'  in  all  cases  of  personal  injuries  committed  by  the  husband  or 
wife  against  each  other,  the  injured  party  is  an  admissible  witness 
against  tlie  other."  ^  But  Mr.  Justice  Ilolroyd  thought  that  the 
wife  could  only  be  admitted  to  |)rove  facts,  which  could  not  be 
proved  by  any  other  witness. ^ 

§  344.  The  wife  has  also,  on  the  same  ground  d"  necessity,  been 
sometimes  admitted  as  a  witness  to  testify  to  secret  facts,  which 
no  one  but  herself  could  know.  Thus  upon  an  appeal  against  an 
order  of  filiation,  in  the  case  of  a  married  woman,  she  was  held 
a  competent  witness  to  prove  her  criminal  connection  with  the 
defendant,  though  her  husband  was  interested  in  the  event ;  ^  but 
for  reasons  of  public  decency  and  morality,  she  cannot  be  allowed 
to  say,  after  marriage,  that  she  had  no  connection  with  her  hus- 
band, and  that  therefore  her  offspring  is  spurious."* 

§  345.  In  cases  of  high  treason,  the  cj[uestion  whether  the  wife 
is  admissible  as  a  witness  against  her  husband  has  been  much 
discussed,  and  opinions  of  great  weight  have  been  given  on  both 
sides.  The  affirmative  of  the  question  is  maintained,^  on  the 
ground  of  the  extreme  necessity  of  the  case,  and  the  nature  of 
the  offence,  tending  as  it  does  to  the  destruction  of  many  lives, 
the  subversion  of  government,  and  the  sacrifice  of  social  hapi)iness. 
For  the  same  reasons,  also,  it  is  said,  that,  if  the  wife  should 
commit  this  crime,  no  plea  of  coverture  shall  excuse  her ;  no  ])re- 
sumption  of  the  husband's  coercion  shall  extenuate  her  giiilt.^ 
But,  on  the  other  hand,  it  is  argued,  that,  as  she  is  not  bound  to 

Rex  V.  Earl  Ferrers,  1  Burr.  G35.     Her  79,  82 ;  Rex  v.  Luflfb,  8  East,  193 ;   Com- 

atfidavit  is  also  admissible,  on  an  applica-  monwcalth    v.    Shepherd,    6    Binn.   288 ; 

tion  for  an  information  a<;ainst  him  for  an  The    State  v.    Pettaway,    3   Hawks,   623. 

attem[)t  to  take  her  by  force,  contrary  to  So,  after  divorce  a  vinculo,  the  wife  may 

articles  of  separation;  Lady  Lawley's  case,  be  a  witness  for  her  late  husband,  in  an 

Bull.  N.  r.  287;  or,  in  a  habeas  corpus  action  brought  by  him  against  a  third  per- 

sued  out  by  him  for  the  same  object,    liex  son,  for  criminal   conversation  with    her 

V.  Mead,  1  Burr.  542.  durin<^  the  marriage.     Katcliff'i'.  Wales,  1 

1  1  East's  P.  C.  4-55.  In  Wakefield's  Hill,  N.  Y.  Kep.  63;  Dickerman  i\  Graves, 
case,  2  Lenin,  Cr.  Cas.  287,  Hullock,  15.,  6  Cusii.  308.  So,  it  has  been  held,  that  on 
expressed  himself  to  the  same  etiect,  an  indictment  against  liim  for  an  assault 
speaking  of  the  admissibility  of_  tlie  wife  and  battery  upon  her,  she  is  a  competciit 
only.  2  Hawk.  P.  C.  c.  46,  §77;  Tlie  witness  for  him,  to  disprove  the  ciiarge. 
People  car  rel. ;  Ordronaux  v.   Chegaray,  The  State  v.  Neil,  6  Ala.  685. 

18  Wend.  642.  ■*  Cope  v.  Cope,  1  M.  &  Rob.  269,  274; 

2  In  Rex  V.  Jaggcr,  cited  2  Russ.  on  Goodright  v.  Moss,  Cowp.  594;  supra,  § 
Crimes,  606.     [Tlie  wife  is  not  a  compe-     28. 

tent  witness  against  the  husband,  in  an  ^  These  authorities  may  be  said  to  fa- 
indictment  against  him  for  subornation  of  vor  tlie  affirmative  of  the  question:  —  2 
jierjury  to  wrong  her  in  a  judicial  pro-  Russ.  on  Crimes,  607  ;  Bull.  N.  P.  286;  1 
cee'ding.  People  v.  Carpenter,  9  Barb.  Gilb.  Evid.  by  Lofft,  252;  Mary  Grigg'a 
5S0.]  case,  T.  Kaym.  1 ;  2  Stark.  Evid.  404. 
**  Rex  V.  Reading,  Cas.  temp.  Ilardw.         "  4  Bl.  Conun.  29. 


CHAP.  II.]  COMPETENCY   OP   WITNESSES.  397 

discover  her  husband's  treason,^  by  parity  of  reason  she  is  not 
compellable  to  testify  against  him.^  The  latter  is  deemed,  by  the 
later  text-'writers,  to  be  the  better  opinion.^ 

§  346.  Upon  the  same  principle  on  whicli  the  testimony  of  the 
husband  or  wife  is  sometimes  admitted  as  well  as  for  some  other 
reasons  already  stated,*  the  dying  declarations  of  either  are  admis- 
sible, where  the  other  party  is  charged  with  the  murder  of  the 
declarant.^ 

I§  347.  The  rule,  excluding  parties  from  being  witnesses,  applies  ^ 
to  all  cases  where  the  party  has  any  interest  at  stake  in  the  suit, 
although  it  be  only  a  liability  to  costs.  Such  is  the  case  of 
a  prochein  ami,^  a  guardian,  an  executor  or  administrator ;  and  so 
also  of  trustees  and  the  officers  of  corporations,  whether  public  or 
private,  wherever  they  are  liable  in  the  first  instance  for  thfe  costs, 
though  they  may  have  a  remedy  for  re-imbursement  out  of  the 
public  or  trust  funds.'' 

§  348.  But  to  the  general  rule,  in  regard  to  parties,  there  are 
some  exceptions  in  which  the  partifs  own  oath  may  be  received  as 
competent  testimony.  One  class  of  these  exceptions,  namely,  that 
in  which  the  oath  in  litem  is  received,  has  long  been  familiar  in 
courts  administering  remedial  justice,  according  to  the  course  of 
the  Roman  law,  though  in  the  common  law  tribunals  its  use  has 
been  less  frequent  and  more  restricted.      The  oath  in  litem   is 


admitted  in  two  claSses  of  cases :  first,  where  it  has  been  already  - 
proved  that  the  party  against  whom  it  is  offered  \\as  beenWuilty 
of  some  fraud  or  other  tortious  and  unwarrantable  act  of  intermed- 
dling with  the  complainant's  goods,  and  no  otl^er  evidence  can  be 
had  of  the  amount  of  damages ;  and,  secondly,  where,  on  general 
grounds  of  public  policy,  it  is  deemed  essential  to  the  purposes  of 

1  1  Brownl.  47.  288 ;  and  would  therefore  seem  to  be  a 

2  1  Hale's  P.  C.  48,  301  ;  2  Hawk.  P.  competent  witness.  And  by  Stat.  183'J, 
C.  cli.  46,  §  82 ;  2  Bac.  Ab.  578,  tit.  Evki.  ch.  107,  §  2,  an  executor,  administrator, 
A.  1 ;  1  Chitty's  Grim.  Law,  596 ;  Mc-  guardian,  or  trustee,  though  a  party,  if 
Nally's  Evid.  181.  liable  only  to  costs,  is  made  competent  to 

'^  Roscoe's  Crim.  Evid.  114 ;  Phil.  &  testify  to  any  matter  known  to  him,  "  be- 
Ani.  on  Evid.  161;  1  Phil.  Evid.  71.  See  fore  he  assumed  the  trust  of  his  appoint- 
also  2  Stark.  Evid.  404,  note  (b).  ment."     In  Viriiinia,  any  such  trustee  is 

*  Supra,  §  1&6.  admissible   as   a  witness,   generallj%  pro- 

s  Hex  r.  Woodcock,  2  Leach,  563  ;  Mc-  vided  some  other  person  shall  first  stipu- 

Nally's  Evid.  174;   Stoop's  case,  Addis,  late  in  his  stead  for  the  costs  to  which  he 

381 ;  The  People  v.  Green,  1  Denio,  R.  may  be  liable.    Rev.  Stat.  184U,  ch.  176, 

614.  §  18. 

''  In  ^^axsnrhl(settlt,  by  force  of  the  stat-  "  Ilojikins  v.  Neal,  2  Stra.  1026  ;  James 

utes  respecting  costs,  a  prochein  ami  is  not  i\  Hatfield,  1  Stra.  548 ;  1  Ciilb.  Evid.  by 

liable  to  costs;  Crandall  v.  Slaid,  11  Met.  Lotff,  p.  225;  Rex  v.  St.  Mary  Magdalen, 

VOL.  1 .  34 


/^.r 


898  LAW   OF   EVIDENCE.  [PART   III. 

justice.^  An  example  of  the  former  class  is  given  in  the  case 
of  the  baililTs,  who,  in  the  service  of  an  execution,  having  discov- 
ered a  sum  of  money  secretly  hidden  in  a  wall,  took  it  away  and 
embezzled  it,  and  did  great  spoil  to  the  debtor's  goods ;  for  which 
they  were  holden  not  only  to  refund  tlie  money,  but  to  make  good 
such  oilier  damage  as  the  jolaintiff  would  swear  he  had  sustained.^ 
So,  where  a  man  ran  away  with  a  casket  of  jewels,  he  was  ordered 
to  answer  in  C(|uity,  and  the  injured  party's  oath  was  allowed  as 
evidence,  in  odium  spoUatoris?  The  rule  is  the  same  at  law. 
Thus,  where  a  shipmaster  received  on  board  his  vessel  a  trunk  of  , 

goods,  to  be  carried  to  another  port,  but  on  the  passage  he  Irolce         ■ 
open  the  trunk  and  rifled  it  of  its  contents ;  in  an  action  by  the    j 
owner  of  the  goods  against  the  shipmaster,  the  plaintiff,  provingjv ,  t\i/v^ 
aliundeWiQ  delivery  of  the  trunk  and  its  violation,  was  held  coin-'^V-'^     ' 
potent  as  a  witness,  on  the  ground  of  necessity ^to  testify  to  the 't: 
particular  contents  of  tlic  trunk,'*     And,  on  the  same  principle,'-^ 

Bermondsey,  3  East,  7  ;  Wliitmore  v.  at  least,  if  not  of  larceny.  It  was  on  this 
Wilks,  1  IVIood.  &  M.  220,  221;  Gresley  ground  of  gross  fraud  and  misconduct  that 
on  ICvid.  242,  243,  244;  Bellew  i\  Kussell,  tiie  rule  in  tliis  case  was  agreed  to  in  Snow 
1  Ball  &  Beat.  99 ;  Wollcy  v.  Brownhill,  v.  The  Eastern  Railroad  Co.  12  Met.  44 ; 
13  I'riee,  513,  514,  per  Ilullock,  B.;  Bar-  the  court  denying  its  application  in  cases 
rett  '".  Gore,  :>  Atk.  401 ;  Fountain  v.  Coke,  of  necessity  alone,  and  in  the  absence  of 
1  Mod.  107;  Goodtitle  v.  Welford,  1  Doug,  jffraud.  Therefore,  where  an  action  on  tlie 
139.  '  In  this  country,  where  the  party  to  case  was  brought  by  a  passenger  against  a 
the  record  is,  in  almost  every  case,  liable  railway  company,  for  tlie  loss  of  his  trunk 
to  costs  in  tiie  first  instance,  in  suits  at  b}'  their  negligence,  there  being  no  allega- 
law,  he  can  hardly  ever  be  competent  as  a  tion  or  proof  of  fraud  or  tortious  act,  the 
witness.  I'ox  r.  Adams,  Itj  JNIass.  118,  court  held,  that  the  plaintiff  was  not  ad- 
121 ;  Sears  r.  Dillingliam,  12  Mass.  8G0.  missihle  as  a  witness,  to  testily  to  the  con- 
See  also  Willis  on  Trustees,  pp.  227,  228,  ^ents  of  his  trunk.  Ibid.  As  this  decision, 
229 ;  Frear  v.  Evertson,  20  Johns.  142 ;  which  lias  been  reported  since  the  last 
Bellamy  v.  Cains,  3  Rich.  354 ;  Ysupra,  §  edition  of  this  work,  is  at  variance  with 
329  an(l  note.]  that  of  Clark  v.  S]ience,  cited  in  the  next 

1  Tait  on  Evid.  280.  note,   the   following    observations   of  the 

-  Childrens  v.  Sa.xby,  1  Vern.  207 ;  1  court  should  be  read  by  the  student  in 

Eq.  Ca.  Ab.  229,  s.  c.  this  connection  :  "  Tiie  law  of  evidence  is 

'^  Anon,  cited  per  the  Lord  Keeper,  in  not  of  a  fleeting  character ;  and  though 

E.  Ind.  Co.  V.  Evans,  1  Vern.  308.     On  new  cases  are  occurring,  calling  for  its 

the    same  principle   in   a  case   of   gross  application,  yet  the  law  itself  rests  on  the 

fraud,  chancery  will  give  costs,  to  be  as-  foundation   of  the   ancient  common  law, 

certained  by  the  party's  own  oath.     Dyer  one  of  tlie  fimdamciital  rules  of  which  is, 

V.  Tymcwell,  2  Vern.  122.  that  no  person  shall  be  a  witness  in  his 

•*  Herman  v.  Drinkwater,  1  Greenl.  27.  own  case.     This  rule  has  existed  for  ages, 

See  also  Sncider  v.  Geiss,  1  Yeates,  34 ;  with   very   little    modification,    and    has 

Anon.  Coniin  Montague,  B.,  12  Vin.  Abr.  yielded  only  where,  from  the  nature  of 

24,  Wit.if'ssrs,  I.  pi.  34.     Sed  i-id.  Bingham  the  case,  other  evidence  was  not  to  be  ob- 

r.  Rogers,  0  Watts  &  Serg.  495.    'i'he  case  tained,  and  there  would  be  a  failure  of 

of  Herman   r.  Drinkwater  was  citeii  and  justice    without   the    oath    of    the    ])arty. 

tacitly  re-afHrmed  by  the  court  in  Gilmore  These  are  exceptions  to  the  rule,  and  form 

V.  Bowden,  3  Fairf  412 ;  the  admissiljility  a  rule  of  themselves.     In  some  cases,  the 

of  the  party  as  a  witness  being  placed  on  admission  of  the  party's  oath  is  in  aid  of 

the  ground  of  necessity.     But  it  is  to  be  the  trial ;  and  in  others,  it  bears  directly 

observed  that,  in  Herman  v.  Drinkwater,  on  tlie  subject  in  controversy.     Thus  the 

the  defendant  was  guilty  of  gross  fraud,  oath  of  the  party  is  admitted  in  respect  to 


CHAP.  II.] 


COMPETENCY   OF   WITNESSES. 


399 


the  bailor,  though  a  phiintilT,  has  been  admitted  a  competent  wit- 
ness to  prove  the  contents  of  a  trunk,  lost  by  the  negligence  of  the 
bailee.^     Such  evidence  is  admitted  not  solely  on  the  ground  of 


a  lost  deed,  or  other  paper,  preparatory  to 
tlie  ofloriiig  of  secondary  evidence  to  prove 
its  contents ;  and  also  for  tlie  purpose  of 
procuring  a  continuance  of  a  suit,  in  order 
to  obtain  testimony  ;  and  for  other  reasons. 
So  the  oath  of  a  party  is  admitted  to  prove 
tlie  truth  of  entries  in  his  book,  of  goods 
delivered  in  small  amounts,  or  of  daily 
labor  performed,  when  the  parties,  from 
their  situation,  have  no  evidence  but  their 
accounts,  and  from  the  nature  of  the  traffic 
or  service,  cannot  have,  as  a  general  thing. 
So,  in  complaints  under  the  bastardy  act, 
where  the  offence  is  secret,  but  yet  there 
is  full  proof  of  the  fact,  the  oath  of  the 
Avonian  is  admitted  to  charge  the  indi- 
vidual. In  cases,  also,  where  robljeries  or 
larcenies  have  been  committed,  and  where 
no  other  evidence  exists  but  that  of  the 
party  robbed  or  i)lundered,  he  has  been 
admitted  as  a  witness  to  prove  his  loss  ; 
as  it  is  said  the  law  so  abhors  the  act  that 
the  party  injured  shall  have  an  extraordi- 
nary remedy  in  odium  spoliaforls.  Upon 
this  principle,  in  an  action  against  the  hun- 
dred, under  the  statute  of  Winton,  the 
person  robbed  was  admitted  as  a  witness, 
to  prove  his  loss  and  the  amount  of  it. 
Bull.  N.  P.  187 ;  Esp.  on  Penal  Stats.  211 ; 
1  Phil.  Ev.  ch.  5,  §  2;  2  Stark.  Evid.  681 ; 
Porter  v.  Hundred  of  Regland,  Peake's 
Add.  Cas.  203.  So  in  equity,  where  a 
man  ran  away  with  a  casket  of  jewels,  the 
party  injured  was  admitted  as  a  witness. 
East  India  Co.  v.  Evans,  1  Vern.  308.     A 

/pase  has  also  been  decided  in  ]Maine,  Her- 
man V.  Drinkwater,  1  Greenl.  27,  where 
the  plaintifl'  was  admitted  to  testify.  In 
that  case,  a  shi[)niaster  received  a  trunk 
of  goods  in  London,  belonging  to  the 
plaintitr,  to  be  carried  in  his  ship  to  New 
York,  and  on  board  which  the  plaintiff 
had  engaged  his  passage.  The  master 
sailed,  designedly  leaving  the  jjlaintiff, 
and  proceeded  to  Portland  instead  of  New 
York.  He  there  broke  open  and  plun- 
dered the  trunk.  These  facts  were  found 
aliuiule,  and  the  jjlaintiff  was  allowed  to 
testify  as  to  the  contents  of  the  trunk. 
Those  cases  proceed  upon  the  criminal 
character  of  the  act,  and  are  limited  in 
V^hcir  nature.  The  present  case  does  not 
rail  within  the  principle.  Here  was  no 
robbery,  no  tortious  taking  away  by  the 
defendants,  no  fraud  committed.  It  is 
simply  a  case  of  negligence  on  the  part  of 
carriers.  The  case  is  not  brought  within 
any  exception  to  the  connnon  rule,  and  is 
a  case  of  defective  ijroof  on  the  part  of  the 


plaintiff,  not  arising  from  necessity,  but 
from  want  of  caution.  To  admit  the  plain- 
tiff's oath,  in  cases  of  this  nature,  would 
lead,  we  think,  to  much  greater  mischiefs, 
in  the  tei>ii)tation  to  frauds  and  i)erjuries, 
than  can  arise  from  excluding  it.  If  the 
party  about  to  travel  places  valuable  arti- 
cles in  his  trunk,  he  should  i)ut  them 
under  the  special  charge  of  the  carrier, 
with  a  statement  of  what  they  are,  and  of 
their  value,  or  j)rovi(le  other  evidence,  be- 
forehand, of  the  articles  taken  by  him. 
If  he  omits  to  do  this,  he  then  takes  the 
chance  of  loss,  as  to  the  value  of  the  arti- 
cles, and  is  guilty,  in  a  degree,  of  negli- 
gence,—  the  very  thing  with  which  he 
attempts  to  charge  the  carrier.  Occa- 
sional evils  only 'have  occurred,  from  such 
losses,  through  failure  of  proof;  the  rela- 
tion of  carriers  to  the  party  being  such 
that  the  losses  are  usually  adjusted  by 
compromise.  And  there  is  nothing  to 
lead  us  to  innovate  on  the  existing  rules 
of  evidence.  No  new  case  is  presented ; 
no  facts  which  have  not  repeatedly  oc- 
curred ;  no  new  combination  of  circum- 
stances." See  12  Met.  46,  47.  [See  also 
Wright  V.  CaldweU,  3  Mich.  51.] 

1  Clai-k  V.  Spence,  10  AVatts,  R.  335  ; 
Story  on  Bailni.  §  4-54,  note  (3d  edit.).  lu 
this  case,  the  doctrine  in  the  text  was 
more  fully  expounded  h}''  Rogers,  J.,  in 
the  following  terms:  "A  party  is_nat 
competent  to  testify  in  his  own  cause ; 
blit,  like  every  other  general  rulCj  tins 
lias  its  excei)tions.  Necessity,  either 
physical  or  moral,  dispenses  with_._tlie 
ordinary  rules  of  evidence.  In  12  \'in. 
24,  jil.  32,  it  is  laid  down,  that  on  a  trial 
at  Bodnyr,  coram  Montague,  B.,  against  a 
common  carrier,  a  question  arose  about 
the  things  in  a  box,  and  he  declared  that 
this  was  one  of  those  cases  where  the 
part}^  himself  might  be  a  witness  cr  neces- 
sitate rei.  Por  every  one  did  not  show 
what  he  put  in  his  box.  The  same  prin- 
ciple is  recognized  in  decisions  which  have 
been  had  on  the  statute  of  Hue  and  Cry 
in  England,  where  the  partj-  robbed  is 
admitteil  as  a  witness  e.r  nccessilate.  Bull. 
N.  P.  181.  So,  in  Herman  r.  Drinkwater, 
1  Greenl.  H.  27,  a  shipmaster  having  re- 
ceived a  trunk  of  goods  on  board  his  ves- 
sel, to  be  carried  to  another  port,  which, 
on  the  passage,  he  broke  open  and  rifled 
of  its  contents ;  the  owner  of  the  goods, 
proving  the  delivery  of  the  trunk  and  its 
violation,  was  admitted  as  a  witness  in  an 
action   for   the   goods,   agamst  the   sliip- 


400  LAW   OF   EVIDENCE.  [PART   III. 

the  just  odium  entertained,  botli  in  equity  and  at  law,  against 
spoliation,  but  also  because,  from  the  necessity  of  the  case  and  the 
nature  of  the  subject,  no  proof  can  otherwise  be  expected ;  it  not 
being  usual  even  for  the  most  prudent  persons,  in  such  cases,  to 
exhibit  the  contents  of  their  trunks  to  strangers,  or  to  pro\'ide 
other  evidence  of  their  value.  For,  where  the  law  can  have  no 
force  but  by  the  evidcucc  of  the  person  in  interest,  there  the  rules 
of  the  common  law,  respecting  evidence  in  general,  are  presumed 
to  be  laid  aside ;  or  rather,  the  subordinate  are  silenced  by  the 
most  transcendent  and  universal  rule,  that  in  all  cases  that  ca- 
dence is  good,  than  which  the  nature  of  the  subject  presumes  none 
better  to  be  attainable.^ 

§  349.  Upon  the  same  necessity,  the  party  is  admitted  in  divers 
other  cases  to  prove  the  facts,  which,  from  their  nature  none  but 
a  party  could  be  likely  to  know.  But  in  such  cases,  a  foundation 
must  first  he  laid  for  the  party's  oath,  by  proving  the  other  facts 
of  the  case  down  to  the  period  to  which  the  party  is  to  speak. 
As,  for  example,  if  a  deed  or  other  material  instrument  of  evi- 
dence is  lost,  it  must  first  be  proved,  as  we  shall  hereafter  show, 
that  such  a  document  existed ;  after  which  the  party's  own  oath 
may  be  received  to  the  fact  and  circumstances  of  its  loss,  provided 
it  was  lost  out  of  his  own  custody .^     To  this  head  of  necessity 

master,  to  testify  to  tlie  particular  contents  to  me  to  be  of  no  consequence,  whether 

of  the  trunk,  there  being  no  other  evidence  the  article  was  sent  by  a  carrier,  or  accora- 

of  tlie  fact  to  be  obtained.     That  a  party  panicd  the  traveller.    The  case  (tf  Ilerniaa 

then  can  be  admitted,  inider  certain  cir-  v.  Drinkwater,  I  would  remark,  was  de- 

cuinstances,  to   prove   the  contents  of  a  cided    under    very    assravated    circuin^ 

box   or    trunk,    must  he   admitted.     But  stances,  and  was   rightly  ruled.      But  if 

while  we  acknowledge  the  exception,  we  must  be  understood,  that  such  proof  car 

nuist  he  careful  iu)t  to  extend  it  beyond  its  be  admitted,  merely  because  no  other  evi- 

legitimate  limits.     It  is  admitted  from  ne-  deuce  of  the  fact  can  be  obtained.     For,  it] 

cessity,  and  perhaps  on  a  principle  of  con-  a  merchant,  sending  goods  to  his  corres- 

venience,  because,  as  is  said  in   Vesey,  jxiudent,  chooses  to  i)ack   them  himself^ 

every  one  does  not  show  wliat  he  puts  in  his   neglect   to   furnish   himself  with  tha 

a  box.     This  applies  witii  grea.t  force  to  ordinary  proof  is  no  reason  for  dispensing 

wearing    apparel,    and    to    every   article  with  the  rule  of  evidence,  which  require* 

which  is  necessary  or  convenient  to  tiie  disinterested  testimony.     It  is  not  of  the| 

traveller,  which,  in  most  cases,  are  packed  usual  course  of  business,  and  there  miist 

bv    the    party    himself,   or    his   wife,   and  be  something  pecuhar  and  extraordinary 

which,  therefore,  would  admit  of  no  otlier  in   the  circumstances  of  the  case,  which 

proof.     A  lady's  jewelry  would  come  in  would  justify  the  court  in  admitting  tlio 

this  class,  and  it  is  easier  to  conceive  than  oath  of  the  party."     See  10  Watts,  R.  3;iG, 

to  enumerate  otiier  articles,  which  come  337.     See   also  ace.   David   v.  Moore,    2 

within  the  same  category.     iS'or  would  it  Watts  &  Serg.  230 ;  Whitesell  v.  Crane,  8 

be   right   to   restrict   the   list  of  articles,  Watts  &  Serg.  o()U ;  McGill  r.  Rowand,  3 

whicli  may  be  so  provetl,  within  narrow  Barr,  451;  County  v.  Leidy,  10  Barr,  45. 
limits,  as  the  jury  will  be  the  judges  of  i  Gilb.  Evid.  by  Lofft,  pp.  244,  245; 

the  credit  to  be  attached  to  the  witness,  supra,  §  82. 

and  be  able,  in  most  cases,  to  prevent  any  '^  Infra,  §  558 ;  Tayloe  r.  Riggs,  1  Pe- 

injury  to  the  defendaut.     It  \rould  seem  ters,  5'jl,  591);  Patterson  y.  Winn,  5  I'eters, 


CHAP.  II.]  COMPETENCY   OF   WITNESSES.  401 

may  be  referred  the  admission  of  the  party  robbed,  as  a  witness 
for  himself,  in  an  action  against  tlie  hundred,  upon  the  statute  of 
"Winton.^  So,  also,  in  questions  which  do  not  involve  the  matter 
in  coirtfovcrsy,  but  matter  which  is  auxiliary  to  the  trial,  and 
which  in  their  nature  are  preliminary  to  the  j)rincii)al  sitljject  of 
controversy,  and  are  addressed  to  the  court,  the  oath  of  the  party 
is  received.^  Of  this  nature  is  his  affidavit  of  the  materiality  of 
a  witness  ;  of  diligent  search  made  for  a  witness,  or  for  a  paper ; 
of  his  inability  to  attend ;  of  the  death  of  a  subscribing  witness ; 
and  so  of  other  matters,  of  which  the  books  of  practice  abound  iu 
examples. 

§  350.  The  second  class  of  cases,  in  which  the  oath  in  litem  is 
admitted,  consists  of  those  in  which  public  necessity  or  expediency 
has  required  it.  Some  cases  of  this  class  have  their  foundation 
in  the  edict  of  the  Roman  Pra;tor ;  Nautce,  caupones,  stabularii, 
quod  cujusque  salvum  fore  recejjerint,  nisi  restituent,  in  eos  judicium 
daho.^  Though  the  terms' of  the  edict  comprehended  only  ship- 
masters, innkeepers,  and  stable-keepers,  yet  its  principle  has  been 
held  to  extend  to  other  bailees,  against  whom,  when  guilty  of  a 
breach  of  the  trust  confided  to  them,  damages  were  awarded  upon 
the  oath  of  the  party  injured,  per  modum  poence  to  the  defendant, 
and  from  the  necessity  of  the  case.*     But  the  common  law  has 

240,  242 ;  Eiggs  v.  Taylor,  9  Wlieat.  48G ;  tions  for  bastardy,  whether  by  the  female 

Taunton  Bank  v.  Eicliardson,  5  Pick.  436,  herself,  or  by  the  town  or  parish  officers, 

442 ;  Poignard  v.  Smith,  8  Pick.  278 ;  Pago  she  is  competent  to  testify  to  focts  within 

V.  Page,  15  Pick.  368,  374,  375;  Chamber-  her  own  exclusive  knowledge,  though  in 

lain  V.  Gorham,  20  Johns.  144 ;  Jackson  v.  most  of  the  United  States,  the  terms  of 

Frier,  16  Johns.  193 ;  Douglass  v.  Saun-  lier  admission  are  prescribed  by  statute, 

derson,  2  Dall.  116;  1  Ycates,  15,  s.  c;  Drowne  v.  Simpson,  2  Mass.  441 ;  Judson 

INIeeker  i\  Jackson,  3  Yeates,  442;  Planton  v.  Blanchard,  4  Conn.  557  ;  Davis  v.  Salis- 

r.  ]\Iiller,  1  Ilayw.  4 ;  Seekright  y.  Bogan,  bury,  1   Day,  278;   Mariner   v.  Dyer,  2 

Id.  178,  n. ;   Smiley  v.  Dewey,  17  Ohio,  Greenl.  .172;    Anon.   3   N.    Ilamp.    135; 

156.     In   Connecticut,  the  party  has  been  Mather  v.  Clark,  2  Aik.  209 ;  The  State  v. 

adjudged  incompetent.     Coleman  v.  Wol-  Coatney,  8  Y'erij.  210. 

jcott,  4  Day,  388.    But  this  decision  has         i  Bull.  N.  P.'  187,  289. 

'since  been  overruled ;  and  it  is  now  held,  -  1  Peters,  596,  597,  per  Jlarshall,  C. 
that  a  party  to  the  suit  is  an  admissible  J.  See  also  Anon.  Cro.  Jac.  429;  Cook  v. 
witness,  to  prove  to  the  court  that  an  in-  Remington,  6  Mod.  237  ;  Ward  v.  Apprice, 
strumont,  which  it  is  necessary  to  produce  Id.  264 ;  Scoresby  v.  Sparrow,  2  Stra. 
at  the  trial,  is  destroyed  or  lost,  so  as  to  1186  ;  Jevans  v.  Ilarriilge,  1  Saund.  9 ; 
let  in  secondary  evidence ;  that  there  is  no  Forbes  c.  AVale,  1  W.  Bl.  532  ;.l  Esp.  278, 
distinction,  in  this  respect,  between  cases  s.  c;  Fortescue  and  Coake's  case,  Godb. 
wliere  the  action  is  upon  the  instrument,  193;  Anon.  Godb.  326;  2  Stark  Evid.  580, 
and  those  where  the  question  arises  indi-  note  (2),  6th  Am.  edit.;  Infra,  §  558. 
rectly  ;  and  that  it  is  of  no  importance,  in  ^  I')ig.  lib.  4,  tit.  9,  1.  1 
the  order  of  exhibiting  the  evidence,  which  *  This  head  of  evidence  is  recognized 
fiict  is  iirst  proved,  whether  tlie  fact  of  tlie  in  the  courts  of  Scotland,  and  is  full}-  ex- 
existence  and  contents  of  tlie  instrument,  plained  in  Tait  on  Evid.  pj).  281V287.  In 
or  the  fact  of  its  destruction  or  loss.  Fitch  Lower  Canada,  the  courts  are  bound  to 
V.  Bogue,  19  Conn.  285.    In  the  prosecu-  admit  the  decisory  oath  [serment  decisoire) 

34* 


402  LAW   OF   EVIDENCE.  [PART   III. 

not  admitted  the  oath  of  tlie  party  upon  the  gronnd  of  the  Praetor's 
edict ;  but  has  confined  its  admission  strictly  to  tliosc  cases  where, 
from  their  nature,  no  other  evidence  was  attainable.^  Thus,  in 
cases  of  necessity,  where  a  statute  can  receive  no  execution,  unless 
the  party  interested  be  a  witness,  there  he  must  be  allowed  to 
testify ;  for  the  statute  must  not  be  rendered  ineffectual  by  the 
impossibility  of  proof.^ 

§  351.  Another  exception  is  allowed  in  equity,  by  which  the 
anstver  of  the  defendant,  so  far  as  it  is  strictly  responsive  to  the  bill, 
is  admitted  as  evidence  in  his  favor  as  well  as  ao;ainst  him.  The 
reason  is,  that  the  plaintiff^  by  appealing  to  the  conscience  of 
the  defendant,  admits  that  his  answer  is  worthy  of  credit,  as  to 
the  matter  of  the  inquiry.  It  is  not  conclusive  evidence ;  but  is 
treated  like  the  testimony  of  any  other  witness,  and  is  decisive  of 
the  question  only  where  it  is  not  outweighed  by  other  evidence.^ 

§  352.  So  also  the  oath  of  the  party,  taken  diverso  intuitu,  may 
sometimes  be  admitted  at  law  in  his  favor.  ^  Thus,  in  considering 
the  question  of  the  originality  of  an  invention,  the  letters-patent 
being  in  the  case,  the  oath  of  the  inventor,  made  prior  to  the 
issuing  of  the  letters-patent,  that  he  was  the  true  and  first  inventor, 
may  be  opposed  to  the  oath  of  a  witness,  whose  testimony  is 
offered  to  show  that  the  invention  was  not  original.'*  So,  upon  the^ 
trial  of  an  action  for  malicious  prosecution,  in  causing  the  plaintiff, 
to  be  indicted,  proof  of  the  evidence  given  by  the  defendant  on  the 
trial  of  the  indictment  is  said  to  be  admissible  in  proof  of  probalile 
cause.^  And  generally,  the  certificate  of  an  officer,  when  by  law 
it  is  evidence  for  others,  is  competent  evidence  for  himself,  if,  at 
the  time  of  making  it,  he  was  authorized  to  do  the  act  therein 
certified.'^ 

of   the   parties,   in    commerciiil    matters,  witness,  unless  he  has  specific  authority 

whenever  eitlier  of  them  sliall  exact  it  of  so  to  do.     Smitli  v.  Sparrow,  11  Jur.  126. 
the  other.     Rev.  Stat.  1815,  p.  143.  •>  Alden  v.  Dewey,  1  Story,  K.  336;  3 

1  Wager  of  law  is  hardly  an  exception  Law   Reporter,   383,  s.  c. ;   I'ettibone   v. 

to  this  rule  of  the  common  law,  since  it  Derringer,  4  Wash.  R.  215. 
was  ordinarily  allowed  only  in  cases  where  ^  Bull.  N.  P.  14 ;  Johnson  v.  Browning, 

the  transaction  was  one  of  personal  and  6  Mod.  216.     "  For  otherwise,"  said  Holt, 

private  trust  and  confidence  between  the  C.  J.,  "  one  that  should  be  robbed,  &c., 

parties.     See  3  Bl.  Connn.  345,  346.  would  be  under  an  intolerable  mischief; 

'^  The  United  States  v.  Murphy,  16  Pe-  for  if  he  prosecuted  for  such  robbery,  &c., 

ters,  R.  203.     See  htfra,  §  412.  and  the  party  should  at  any  rate  be  ac- 

3  2  Story  on  Eq.  Jur.  §  1528 ;  Clark  v.  quitted,  the  prosecutor  would  be  liable  to 

Van  Reimsdyk,  9  Cranch,  160.     But  the  an  action  for  a  malicious  prosecution,  with- 

answer  of  an   infant  can  never  be  read  out  a  possibility  of  making  a  good  defence, 

against  him  ;  nor  can  that  of  a  feme  covert,  thougli  the  cause  of  prosecution  were  never 

answering  jointly  with  her  husband.    Gres-  so  pregnant." 

ley  on  Evid.  p.  24.     An  arbitrator  has  no  '^  McKnight  v.  Lewis,  5  Barb.  S.  C  R. 

right  to  admit  a  party  in  the  cause  as  a  181 ;  McCully  v.  ALalcolm,  9  Humph.  187. 


CHAP.  II.] 


COMPETENCY   OF   WITNESSES. 


403 


§  353.  The  rule  which  excludes  the  party  to  the  siiit  from  being 
admitted  as  a  Avitiiess  is  also  a  rule  of  protection,  no  person  who 
is  a  party  to  the  record  being  conijyellable  to  testify,^  It  is  only 
wlien  he  consents  to  be  examined,  that  he  is  admissible  in  any 
case ;  nor  then,  unless  under  the  circumstances  presently  to  l^e 
mentioned.  If  he  is  only  a  nominal  party,  the  consent  of  the  real 
])arty  in  interest  must  be  obtained  before  he  can  be  examined.''^ 
Nor  can  one  who  is  sul)stantially  a  party  to  the  record  be  com- 
pelled to  testify,  thougli  he  be  not  nominally  a  party .^ 

§  354.  It  has  been  said,  that  where  one  of  several  co-plaintiffs 
voluntarilij  comes  forward  as  a  witness  for  tlie  adverse  party,  he 
is  admissible,  without  or  even  against  the  consent  of  his  fellows ; 
upon  the  ground,  that  he  is  testifying  against  his  own  interest, 
that  the  privilege  of  exemption  is  personal  and  several,  and  not 
mutual  and  joint,  and  that  his  declarations  out  of  court  being 
admissible,  a  fortiori,  they  ought  to  be  received,  when  made  in 
court  under  oath.*  But  the  bettor  opinion  is,  and  so  it  has  been 
resolved,^  that  such  a  rule  would  hold  out  to  parties  a  strong 


So,  the  account  of  sales,  rendered  by  a 
consignee,  may  be  evidence  for  some  pur- 
poses, in  his  tavor,  against  the  consignor. 
Mertens  v.  Nottebolmis,  4  Grant,  168. 

1  Rex  V.  Woburn,  10  East,  3'J5 ;  Wor- 
rall  V.  Jones,  7  Bing.  395;  Fcnn  v.  Gran- 
ger, 3  Campb.  177 ;  Mant  v.  Mainwaring, 
8  Taunt.  139. 

-  Frear  v.  Evertson,  20  Johns.  142. 
And  see  The  People  r.  Irving,  1  Wend. 
-0;  Commonwealth  c.  Marsh,  21  Tick.  57, 
per  AVilde,  J. ;  Columbian  Manuf.  Co.  v. 
Dutch,  13  Pick.  125;  Bradlee  v.  Neal,  16 
Pick.  501.  In  Connecticut  and  Vermont, 
where  the  declarations  of  the  assignor  of 
a  chose  in  action  are  still  held  admissible 
to  impeacli  it  in  the  hands  of  the  assignee, 
in  an  action  brought  in  the  name  of  the 
former  for  the  benefit  of  the  latter,  the 
defendant  is  permitted  to  read  the  dejJO- 
sition  of  the  nominal  plaintitf,  voluntarily 
given,  though  objected  to  b}^  the  jiarty  in 
interest.  Woodrutf  r.  Westcott,  12  Conn. 
134;  Johnson  v.  Blackman,  11  Conn,  342; 
Sargeant  v.  Sargeant,  3  Wash.  371.  See 
supra,  190. 

3  Mauran  v.  Lamb,  7  Cowen,  174  ;  TJex 
ii'.  Woburn,  10  East,  403,  per  Ld.  Ellcu- 
jborough.  In  several  of  the  United  States 
lit  is  enacted  that  the  parties,  in  actions  at 
Kaw,  as  well  as  in  etiuity,  may  interrogate 
lEach  other  as  witnesses.  See  Massdchu- 
setts,  Stat.  1852,  c.  312,  §  61-75 ;  New  York, 
Code  of  Practice,  §§  344,  349,  350 ;  Texas, 


Hartlev's  Dig.,  iVrts.  735,  739 ;  California, 
Rev.  Stat.  1850,  c.  142,  §  296-303;  [sujrra, 
§  329  and  note.]     See  vol.  3,  §  317. 

*  Phil.  &  Am.  on  Evid.  1-58;  1  Phil. 
Evid.  60.  The  cases  which  are  usually 
cited  to  support  this  opinion,  are  Norden 
V.  Williamson,  1  Taunt.  377;  Fenn  u. 
Granger,  3  Canipb.  177,  and  Worrall  r. 
Jones,  7  Bing.  395.  But  in  the  first  of 
these  cases,  no  objection  ajjpears  tb  have 
been  made  on  helialf  of  the  other  co- 
phxintiff,  that  his  consent  was  necessary ; 
but  the  decision  is  expressly  i)laced  on  the 
ground,  that  neither  party  objected  at  tlie 
time.  In  Fenn  v.  Granger,  Ld.  Ellen- 
borough  would  have  rejected  the  witness, 
but  the  objection  was  waived.  In  Wor- 
rall V.  Jones,  the  naked  question  was, 
whether  a  defendant  who  has  suffered 
judgment  by  default,  and  has  no  interest 
in  the  event  of  the  suit,  is  admissible  as  a 
witness  for  the  plaintiff,  by  his  own  con- 
sent, wiiere  "tlie^»///  objection  to  his  ad- 
missibility is  this,  that  he  is  party  to  the 
record."  See  also  Willings  r.  Consequa, 
1  Peters,  C.  C.  R.  307,  per  Washington, 
J.;  Paine  r.  Tilden,  3  Washb.  554;  [Wills 
r.  Judd,  26  Vt.  617.] 

^  Scott  r.  Lloyd,  12  Peters,  149.  See 
also  2  Stark.  Evid.  580,  note  (e);  Bridges 
v.  Armour,  5  How.  S.  C.  R.  91 ;  Evans  v. 
Gibbs,  6  Humph.  405;  Sargeant  v.  Sar- 
geant, 3  Washb.  371. 


404  LAW    OF    EVIDENCE.  [I'ART   III. 

temptation  to  perjury ;  that  it  is  not  supported  by  principle  or 
authority,  and  that  therefore  the  party  is  not  admissible,  without 
the  consent  of  all  parties  to  the  record,  for  that  the  privilege  is 
mutual  and  joint,  and  not  several.  It  may  also  be  observed,  that 
the  declarations  of  one  of  several  parties  are  not  always  admissible 
against  his  fellows,  and  that  when  admitted,  they  are  often  sus- 
ceptible of  explanation  or  contradiction,  where  testimony  under 
oath  could  not  be  resisted. 

§  355.  Hitherto,  in  treating  of  the  admissibility  of  parties  to 
the  record  as  witnesses,  they  have  been  considered  as  still  retain- 
ing their  original  situation,  assumed  at  the  commencement  of  the 
suit.  But  as  the  situation  of  some  of  the  defendants,  where  there 
are  several  in  the  same  suit,  may  be  essentially  changed  in  the 
course  of  its  progress,  by  default,  or  nolle  pjvsequi,  and  sometimes 
by  verdict,  their  case  deserves  a  distinct  consideration.  This 
question  has  arisen  in  cases  where  the  testimony  of  a  defendant, 
thus  situated,  is  material  to  the  defence  of  his  fellows.  And  here 
the  general  doctrine  is,  that  where  the  suit  is  ended  as  to  one  of 
several  defendants,  and  he  has  no  direct  interest  in  its  event  as 
to  the  others,  he  is  a  competent  witness  for  them,  his  own  fate 
being  at  all  events  certain. ^ 

§  356.  In  actions  on  contracts,  the  operation  of  this  rule  was 
formerly  excluded ;  for  the  contract  being  laid  jointly,  the  judg- 
ment l^y  default  against  one  of  several  defendants  it  was  thought, 
would  operate  against  him,  only  in  the  event  of  a  verdict  against 
the  others  ;  and  accordingly  he  has  been  held  inadmissible  in  such 
actions,  as  a  witness  in  their  favor.^  On  a  similar  principle,  a 
defendant  thus  situated  has  been  held  not  a  competent  witness  for 
the  plaintiff;  on  the  ground  that,  by  suffering  judgment  by  default, 
he  admitted  that  he  was  liable  to  the  plaintiff's  demand,  and  was 
therefore  directly  interested  in  throwing  part  of  that  burden  on 
another  person.^  But  in  another  case,  where  the  action  was  upon 
a  bond,  and  the  principal  suffered  judgment  by  default,  he  was 
admitted  as  a  witness  for  the  plaintiff,  against  one  of  the  other 
dcfciulants,  his  surety ;  though  here  the  point  submitted  to  the 
court  was  narrowed  to  the   mere   abstract   question,  whether  a 

1  Infra,  §§  358,  359,  360,  363.  125 ;  Mills  v.  Lee,  4  Hill,  R.  549 ;  [Thorn- 

2  Mant  V.  Mainwaring,  8  Taiint.  130 ;  ton  v.  Blaisdell,  37  Maine,  199 ;  King  v. 
Brown  v.  Brown,  4  Taunt.  752;   Scher-     Lowry,  20  Barb.  532.] 

merhorn  v.  Hchermcrliorn,  1  Wend.  119;         ^  Green  v.  Sutton,  2  M.  &  Rob.  269. 
Columbia  Man.   Co.  v.  Dutch,  13  Pick. 


CHAP.  II.] 


COMPETENCY   OF   WITNESSES. 


405 


party  to  the  record  -was,  on  that  account  alone,  precluded  from 
being  a  witness,  he  having  no  interest  in  the  event.^  But  the 
whole  subject  has  more  recently  been  reviewed  in  England,  and 
the  rule  established,  that  where  one  of  two  joint  defendants  in  an 
action  on  contract,  has  suffered  judgment  by  default  he  may,  if 
not  othenvise  interested  in  procuring  a  verdict  for  the  2^i<^intiff,  be 
called  by  him  as  a  witness  against  the  other  defendant.^  So,  if 
the  defence,  in  an  action  ex  contractu  against  several,  goes  merely 
to  the  personal  discharge  of  the  party  pleading  it,  and  not  to  that 
of  the  others,  and  the  plaintiff  thereupon  enters  a  nolle  2?rosequi  as 
to  him,  which  in  such  cases  he  may  well  do,  such  defendant  is  no 
longer  a  party  upon  the  record,  and  is  therefore  competent  as 
a  witness,  if  not  otherwise  disqualified.  Thus,  wdiere  the  plea  by 
one  of  several  defendants  is  bankruptcy ,3  or,  that  he  was  never 
executor,  or,  as  it  seems  by  the  later  and  better  opinions,  infancy 
or  coverture,*  the  plaintiff  may  enter  a  nolle  prosequi  as  to  such 
party,  who,  being  thus  disengaged  from  the  record,  may  be  called 


1  "Worrall  v.  Jones,  7  Bing.  395.  See 
Foxcroft  V.  Nevens,  4  Greenl.  72,  contra. 
In  a  case  before  Le  Blanc,  J.,  he  refused 
to  permit  one  tlefendant,  who  had  suffered 
judj;nient  to  go  by  default,  to  be  called  by 
the  plaintilf  to  inculpate  the  others,  even 
in  an  action  of  trespass.  Chapman  v. 
Graves,  2  Campb.  333,  334,  note.  See 
ace.  Supervisors  of  Chenango  v.  Birdsall, 
4  Wend.  450,  457.  Thft  general  rule  is, 
that  a  party  to  the  record  can,  in  no  case, 
be  examined  as  a  witness  ;  a  rule  founded 
principally  on  the  policy  of  preventing 
perjury,  and  the  hardship  of  calling  on  a 
party  to  charge  himself.  Frazier  r.  Laugh- 
lin,  1  Gilm.  347 ;  Fhnt  v.  ^Vllyn,  12  Verm. 
615  ;  Kennedy  v.  Niles,  2  Shepl.  54 ;  Stone 
V.  Bibb,  2  Ala.  100.  And  this  rule  is 
strictly  enforced  against  plaintifls,  because 
the  joining  of  so  many  defendants  is  gene- 
rally their  own  act,  though  sometimes  it 
is  a  matter  of  necessity.  2  Stark.  Evid. 
581,  note  (a) ;  Blackett  v.  Weir,  5  B.  &  C. 
387  ;  Barrett  v.  Gore,  3  Atk.  401 ;  Bull.  N. 
P.  285;  Cas.  temp.  Hardw.  1G3. 

-  Pipe  I'.  Steel,  2  Ad.  &  El.  733,  n.  s.  ; 
Cupper  V.  Newark,  2  C.  &  K.  24  Thus, 
he  has  been  admitted,  with  liis  own  con- 
sent, as  a  witness  to  prove  that  he  is  the 
principal  debtor,  and  that  the  signatures 
of  the  other  defendants,  who  are  his  sure- 
ties, are  genuine.  Mevcy  v.  Matthews,  9 
Barr,  112.  But  generally  he  is  interested; 
either  to  defeat  the  action  against  both,  or 
to  throw  on  the  other  delendant  a  portion 


of  the  demand,  or  to  reduce  the  amount  to 
be  recovered.  Bowman  v.  Noyes,  12  K 
Hamp.  302 ;  George  v.  Sargeant,  Id.  313  ; 
Vinal  V.  Burrill,  18  Pick.  29;  Bull  v. 
Strong,  8  Met.  8;  Walton  v.  Tomlin,  1 
Ired.  593  ;  Turner  v.  Lazarus,  6  Ala.  875 ; 
[3Ianchester  Bank  v.  Moore,  19  N.  H.  564; 
Ivincaid  v.  Purcell,  1  Carter,  324.] 

3  Noke  V.  Ingham,  1  Wils.  89 ;  1  Tidd's 
Pr.  602 ;  1  Saund.  207,  a.  But  see  ]\lills 
V.  Lee,  4  Hill,  E.  549. 

*  1  Paine  &  Duer's  Pr.  642, 643  ;  Wood- 
ward V.  Newhall,  1  Pick.  500;  Hartness 
V.  Thompson,  5  Johns.  160 ;  Pell  v.  Pell, 
20  Johns.  126 ;  Burgess  v.  Merrill,  4  Taunt. 
408.  The  ground  is,  that  these  pleas  are 
not  in  bar  of  the  entire  action,  but  only  in 
bar  as  to  the  party  pleading ;  and  thus  the 
case  is  brought  within  the  general  princi- 
ple, that  where  the  plea  goes  only  to  the 
personal  discharge  of  the  partj-  pleading 
it,  the  plaintiff  mav  enter  a  iMlle  prosirjui. 
1  Pick.  501,  502.  See  also  Minor  i:  The 
IMechanics'  Bank  of  Alexandria,  1  Peters, 
74.  So,  if  the  cause  is  otherwise  adjudi- 
cated in  favor  of  one  of  the  defendants, 
upon  a  i^lea  personal  to  himself,  whether 
it  be  b\-  tiie  common  law,  or  by  virtue  of 
a  statute  authorizing  a  separate  finding  in 
fiivor  of  one  defendant,  in  an  action  upon 
a  joint  contract,  the  result  is  the  same. 
Blake  v.  Ladd,  10  Kew  ilamii.  190:  Essex 
Bank  v.  l\ix.  Id.  201;  Brooks  i-.  ]M'Ken- 
nev,  4  Scam.  309.  And  see  Campbell  v. 
Hood,  G  Mis.  211. 


406 


LAW  OF   EVIDENCE. 


[part  III. 


as  a  witness,  the  suit  still  proceeding  against  the  others.^  The 
mere  pleading  of  the  bankruptcy,  or  other  matter  of  personal  dis- 
charge, is  not  alone  sufficient  to  render  the  party  a  competent 
witness ;  and  it  has  been  held,  that  he  is  not  entitled  to  a  previous 
verdict  upon  that  plea,  for  the  purpose  of  testifying  for  the 
others.- 

§  357.  In  actions  on  torts,  these  being  in  their  nature  and  legal 
consequences  several,  as  well  as  ordinarily  joint,  and  there  being 
.'no  contribution  among  wrongdoers,  it  has  not  been  deemed  neces- 
sary to  exclude  a  material  witness  for  the  defendants,  merely 
because  the  plaintiff  has  joined  him  with  them  in  the  suit,  if  the 
suit,  as  to  him,  is  already  determined,  and  he  has  no  longer  any 
legal  interest  in  the  event.^  Accordingly,  a  defendant  in  an  action 
for  a  tort,  who  has  suffered  judgment  to  go  by  default,  has  uni- 
formly been  held  admissible  as  a  witness  for  his  co-defendants.* 
Whether,  being  admitted  as  a  witness,  he  is  competent  to  testify 
to  the  amount  of  damages,  which  are  generally  assessed  entire 
against  all  who  are  found  guilty,^  may  well  be  doubted.^     And 


1  Mclver  v.  Humble,  16  East,  171,  per 
Le  Blanc,  J.,  cited  7  Taunt.  607,  per  Park, 
J.;  Moody  v.  Kini,',  2  U.  &  C.  u-38;  Aflalo 
r.  Fourdrinier,  G  Bmg.  306.  But  see  Ir- 
win V.  Shumaker,  4  Barr,  199. 

-  Raven  v.  Dunning,  3  Esp.  25;  Em- 
mett  V.  Butler,  7  Taunt.  599;  1  Moore, 
382,  s.  c;  Schermerliorn  v.  Schermer- 
liorn,  1  Wend.  119.  But  irt  a  later  case, 
since  the  49  G.  III.,  c.  121,  Park,  J.,  per- 
mitted a  verdict  to  be  returned  upon  the 
plea,  in  order  to  admit  the  witness.  Bate 
V.  Russell,  1  Mood.  &  M.  332.  Where,  by 
statute,  tlie  plaintiff,  in  an  action  on  a 
parol  contract  against  several,  may  have 
judgment  against  one  or  more  of  the  de- 
fendants, according  to  his  proof,  there  it 
has  been  held,  that  a  defendant  who  has 
been  defaulted  is,  with  his  consent,  a  com- 
petent witness  in  favor  of  his  co-defend- 
ants. Bradlee  v.  Neal,  16  Pick.  501.  But 
this  has  since  been  questioned,  on  the 
ground  that  his  interest  is  to  reduce  the 
demand  of  the  plaintiff  against  the  others 
to  nominal  damages,  in  order  that  no 
greater  damages  may  be  assessed  against 
him  upon  his  default.  Vinal  v.  Burrill, 
Id  Pick.  29.  [Vinal  v.  Burrill  is  distin- 
guished from  Bradlee  v^  Neal,  by  Shaw, 
C.  J.,  in  Gerrish  v.  Cummiugs,  4  Cush. 
392.] 

3  As,  if  one  has  been  separately  tried 
and  acquitted.  Carpenter  v.  Crane,  5 
Black,  119. 


*  Ward  V.  Haydon,  2  Esp.  552,  ap- 
proved in  Hawkesworth  v.  Showier,  12 
M.  &  W.  48;  Chapman  v.  Graves,  2 
Campb.  334,  per  Le  Blanc,  J. ;  Conmion- 
wealth  V.  Marsh,  10  Pick.  57,  58.  A  de- 
fendant, in  such  case,  is  also  a  competent 
witness  for  the  plaintiff.  Hadrick  v.  Iles- 
lop,  12  Jur.  600;  17  Law  J.,  n.  s.  313 ;  12 
Ad.  &  El.  266,  N.  s.  Th'e  wife  of  one 
joint  trespasser  is  not  admissible  as  a 
witness  for  the  other,  though  the  case  is 
already  fully  proved  against  her  husband, 
if  he  is  still  a  party  to  the  record.  Hawkes- 
worth r.  Showier,  12  M.  &  W.  45. 

5  2  Tidd's  Pr.  896. 

6  In  Mash  v.  Smith,  1  C.  &,  P.  577, 
Best,  C.  J.,  was  of  opinion,  that  the  wit- 
ness ought  not  to  be  admitted  at  all,  on 
the  ground  that  his  evidence  might  give 
a  diSerent  complexion  to  the  case,  and 
thus  go  to  reduce  the  damages  against 
himself;  but  on  the  authority  of  Ward  v. 
Ilaydon,  and  Chapman  v.  Graves,  he 
tliought  it  best  to  receive  the  witness, 
giving  leave  to  the  ojiposing  party  to 
move  for  a  new  trial.  But  the  point  was 
not  moved ;  and  the  report  does  not  show 
which  way  was  the  verdict.  It  has,  how- 
ever, more  recently  been  held  in  Phigland, 
that  a  delendant  in  trespass,  who  has  suf- 
fered judgment  by  default,  is  not  a  compe- 
tent witness  for  Ids  co-defendant,  where 
the  jury  are  sununoned  as  well  to  try  the 
issue  against  the  one,  as  to  assess  damages 


CHAP.  II.]  COMPETENCY   OF   WITNESSES.  407 

indeed  the  rule,  admitting  a  defendant  as  witness  for  liis  fellows  iu 
any  case,  must,  as  it  should  seem,  Ije  limited  strictly  to  the  case 
where  his  testimony  cannot  directly  make  for  himself;  for  if  the 
plea  set  u\)  liy  the  other  defendants  is  of  sucli  a  nature,  as  to  show 
that  the  ])laintilf  has  no  cause  of  action  against  any  of  the  defend- 
ants in  the  suit,  the  one  who  suffers  judgment  by  default  will  Ijc 
entitled  to  the  benefit  of  the  defence,  if  established,  and  therefore 
is  as  directly  interested  as  if  the  action  were  upon  a  joint  contract.^ 
It  is,  therefore,  only  where  the  plea  operates  solely  in  dischargel 
of  the  party  pleading  it,  that  another  defendant,  who  has  suffered| 
judgment  to  go  by  default,  is  admissible  as  a  witness.^ 

§  358.  If  the  person,  who  is  a  material  witness  for  the  defend- 
ants, has  been  improperly  joined  with  them  in  the  suit,  for  the 
purpose  of  excluding  his  testimony,  the  jury  will  be  directed  to  - 
find  a  separate  verdict  in  his  favor ;  in  which  case,  the  cause  being 
at  an  end  with  respect  to  him,  he  may  be  admitted  a  witness  for 
the  other  defendants.  But  this  can  be  allowed  only  where  there 
is  no  evidence  whatever  against  him,  for  then  only  does  it  appear 
that  he  was  improperly  joined,  through  the  artifice  and  fraud  of 
the  plaintiff.  But  if  there  l)e  any  evidence  against  him,  though, 
in  the  judge-'s  opinion,  not  enough  for  his  conviction,  he  cannot 
be  admitted  as  a  witness  for  his  fellows,  because  his  guilt  or 
innocence  must  wait  the  event  of  the  verdict,  the  jury  being  the 
sole  judges  of  the  fact.^  In  what  stage  of  the  cause  the  party, 
thus  improperly  joined,  might  be  acquitted,  and  whether  before 
the  close  of  the  case  on  the  part  of  the  other  defendants,  was 
formerly  uncertain ;  but  it  is  now  settled,  that  the  a])plication  to 
a  judge,  in  the  course  of  a  cause,  to  direct  a  verdict  for  one  or  more 
of  several  defendants  in  trespass,  is  strictly  to  his  discretion ;  and 
that  discretion  is  to  be  regulated,  not  merely  by  the  fact  that,  at 
the  close  of  the  plaintiff's  case,  no  evidence  appears  to  affect  them, 

at^ainst  the  other.     Thorpe  r.  Barber,  5  ^  2  Tidd's  Tr.  895;  Ericgs  v.  Grecn- 

M.  G.  &  Sc.  675 ;  17  Law  Joiirn.  n.  s.  113.  field  et  al.  1  Str.  610  ;  8  Mod.  217 ;  2  Ld. 

And  see   Ballard  v.  Noaks,  2  Pike,  45.  Raj-m.  1372,  s.  c;  Phil.  &  Am.  on  Evid. 

[Where  one  of  two  (k'teiidant.s  in  an  action  53,  note  (3);    1    IMiil.   Evid.  52,  n.   (1); 

of  trover  is  defaulteil,  lie  is  not  a  conipe-  Bowman  v.  Noyes,  12  N.  liamp.  K.  302. 
tent  witness  on  tl>e  trial  for  tlie  other,  on  -  1  Gilb.  Evid.  by  Lolft,  p.  250 ;  Brown 

the  ground  of  int-erest,  even  thougli  called  i\  Howard,  14  Johns.  IIU,  122;  Van  Deu- 

to  testify  to   matters  not  coimected  with  sen   v.  Van   Slyck,  15  Jolms.  223.  •  The 

the  question  of  damages  ;  because,  if  ad-  admission  of  the  witness,  in  all  these  cases, 

missible  at  all,  lie  is  liable  to  be  examined  seems  to  rest  in  the  discretion  of  the  judge, 

upon  all  matters  pertinent  to  the  issue  on  Brotherton  v.  Livingston,  3  Watts  &  Serg 

trial.     Gerrish  v.  Cunnnings,  4  Cush.  391;  334 ;  [Castle  v.  Bullard,  23  Ilow.  173.] 
Chase  ;-••  Lovcring,  7  Foster,  295.] 


408 


LAW   OF   EVIDENCE. 


[part  III. 


■) 


but  by  the  probabilities  whether  any  such  will  arise  before  the 
whole  evidence  in  the  cause  closes.^  The  ordinary  course,  there- 
fore, is  to  let  the  cause  go  on,  to  the  end  of  the  evidence.^  But 
if,  at  the  close  of  the  plaintiff's  case,  there  is  one  defendant 
against  whom  no  evidence  has  been  given,  and  none  is  anticipated 
with  any  probability,  he  instantly  will  be  acquitted.^  The  mere 
fact  of  mentioning  the  party  in  the  simul  cum,  in  the  declaration, 

(does  not  render  him  incompetent  as  a  witness ;  but  if  the  j)laijitig' 
can  prove  the  })i'is(.ii  so  named  to  Ijc  guilty  of  the  trespass,  and 
party  to  the  suit,  which  must  be  by  producing  the  original  process 
against  him,  and  proving  an  ineffectual  endeavor  to  arrest  him, 
or  that  the  process  was  lost,  the  defendant  shall  not  have  the 
benefit  of  his  testimony.^ 

§  359.  If  the  plaintiff,  in  trespass,  has  hi/  mistake  made  one  of 


1  Sowell  V.  Champion,  G  Ad.  &  El.  407; 
White  V.  Hill,  6  Ad.  &  EI.  487,  491,  n.  s.  ; 
Commonwealtli  v.  Eastman,  1  Gush.  189 ; 
Over  V.  Blackstone,  8  Watts  &  Serg.  71 ; 
Prettyman  i\  Dean,  2  ILarringt.  494; 
Brown  v.  Burnes,  8  IVIis.  26. 

2  6  Ad.  &  El.  491,  N.  s.,  per  Ld.  Den- 
man. 

3  Child  V.  Chamberlain,  6  C.  &  P.  213. 
It  is  not  easy  to  perceive  why  the  same 
principle  should  not  be  applied  to  actions 
upon  contract,  where  one  of  the  defendants 
pleads  a  matter  in  his  own  personal  dis- 
charge, sucli  as  infancy  or  bankruptcy, 
and  establishes  his  plea  by  a  certificate,  or 
other  affirmative  proof,  which  the  plaintiff 
does  not  pretend  to  gainsay  or  resist.  See 
Bate  V.  Kussell,  1  Mood.  &  M.  332.  Upon 
Emniett  v.  Butler,  7  Taunt.  599,  where  it 
was  not  allowed,  Mr.  Phillips  very  justly 
observes,  that  the  plea  was  not  the  com- 
mon one  of  Irankruptcy  and  certificate ; 
but  that  tlie  i)laintiti's  had  jiroird  (under 
the  commission),  and  thereby  made  their 
election  ;  and  that  where  a  plea  is  special, 
and  iuA^olves  the  consideration  of  many 
facts,  it  is  obvious  that  there  would  be 
much  inconvenience  in  splitting  the  case, 
and  taking  separate  verdicts ;  but  there 
seems  to  be  no  such  inconvenience  where 
the  wliole  proof  consists  of  the  bankrupt's 
certificate.  Phil.  &  Am.  on  Evid.  p.  29, 
note  (3);  [Beasley  v.  Bradley,  2  Swan, 
180;  Cochran  r.  Amnion,  IG  III.  316.] 

*  Bull.  N.  P.  2SG;  1  Gilb.  Evid.  by 
LofiV,  p.  251;  Lloyd  v.  Wilhams,  Cas. 
temp,  llardw.  123;  Cotton  i'.  Luttrell,  1 
Atk.  452.  "These  cases  appear  to  have 
proceeded  upon  the  ground,  that  a  co- 
trespasser,  who  had  originally  been  made 
a  party  to  the  siut  upon  sufficient  grounds, 


ought  not  to  come  forward  as  a  witness  to 
defeat  the  plaintiff,  after  he  had  prevented 
the  plaintiff  from  proceeding  efiectually 
against  him,  by  his  own  wrongful  act  in 
eluding  the  process."  Phil.  &  Am.  on  Ev. 
p.  GO,  note  (2).  But  see  Stockham  v. 
Jones,  10  Johns.  21,  contra.  See  also  1 
Stark.  Evid.  132.  In  Wakeley  v.  Hart,  6 
Binn.  31G,  all  the  defendants,  in  trespass, 
were  arrested,  but  the  plaintiff  went  to 
issue  with  some  of  them  only,  and  did  not 
rule  the  others  to  plead,  nor  take  judg- 
ment against  them  by  default;  and  they 
were  held  competent  witnesses  for  the 
other  defendants.  The  learned  chief  jus- 
tice placed  the  decision  partly  upon  the 
general  ground,  that  they  were  not  inter- 
ested in  the  eveiK  of  tlie  suit ;  citing  and 
approving  the  case  of  Stockham  v.  Jones, 
.s(//)ra.  But  he  also  laid  equal  stress  upon 
the  fact,  that  the  plaintiff  might  have  con- 
ducted his  cause  so  as  to  have  excluded 
the  witnesses,  by  laying  tliem  under  a  rule 
to  plead,  and  taking  judgment  by  default. 
In  Purviance  v.  Drj'den,  3  S.  &  R.  402, 
and  Gibbs  v.  Bryant,  1  Pick.  118,  both  of 
which  were  actions  upon  conti-act,  where 
tlie  process  was  not  served  as  to  one  of  the 
persons  named  as  defendant  with  the  other, 
it  was  held,  that  lie  was  not  a  party  to  the 
record,  not  being  served  with  process,  and 
so  was  not  incompetent  as  a  witness  on 
that  account.  Neither  of  these  cases, 
therefore,  except  that  of  Stockham  v. 
Jones,  touches  the  ground  of  public  policy 
for  the  i)revention  of  fraud  in  cases  of 
tort,  on  which  the  rule  in  the  text  seems 
to  have  been  founded.  Idro  qvcere.  See 
also  Curtis  v.  Graham,  12  Mart.  289; 
Heckert  v.  Fegely,  5  Watts  &  Serg.  333. 


CHAP.  II.]  COMPETE>'CY    OF   WITNESSES.  409 

his  own  intended  witnesses  a  defendant,  the  court  will,  on  motion, 
give  leave  to  omit  him,  and  have  his  name  stricken  from  the 
record,  even  after  issue  joined.^  In  criminal  informations,  the 
same  ol)jcct  is  attained  by  entering  a  nolle  pi-oscqui,  as  to  the  party 
intended  to  be  examined ;  the  rule,  that  a  plaintiff  can  in  no  case 
examine  a  defendant,  being  enforced  in  criminal  as  well  as  in  civil 
cases.2 

§  360.  If  a  material  witness  for  a  defendant  in  ejectment  be  also 
made  a  defendant,  he  may  let  judgment  go  by  default,  and  be 
admitted  as  a  witness  for  the  other  defendant.  But  if  he  plead, 
thereby  admitting  himself  tenant  in  possession,  the  court  will  not 
afterwards,  upon  motion,  strike  out  his  name.^  But  where  he  is 
in  possession  of  only  a  part  of  the  premises,  and  consents  to  the 
return  of  a  verdict  against  him  for  as  much  as  he  is  proved  to 
have  in  possession,  Mr.  Justice  Buller  said,  he  could  see  no 
reason  why  he  should  not  he  a  witness  for  another  defendant.^ 

§  361.  In  chancery,  parties  to  the  I'ccord  are  subject  to  exami- 
nation as  witnesses,  much  more  freely  than  at  law.  A  plaintiff 
may  obtain  an  order,  as  of  course,  to  examine  a  defendant,  and 
a  defendant  a  co-defendant,  as  a  witness,  upon  affidavit  that  he 
is  a  material  witness,  and  is  not  interested  on  the  side  of  the 
applicant,  in  the  matter  to  which  rt  is  proposed  to  examine  him ; 
the  order  being  made  subject  to  all  just  exceptions.^  And  it  may 
be  obtained  ex  parte,  as  well  after  as  before  decree.^  If  the  answer 
of  the  defendant  has  been  replied  to,  the  replication  must  be  with- 
drawn before  the  plaintiff  can  examine  him.  But  a  plaintiff  can-\ 
not  be  examined  by  a  defendant,  except  by  consent,  unless  he  is  I 

1  Bull.  N.  P.  285;  Berrington  d.  Dor-  See  also  Reeves  i'.  Matthews,  17  Geo. 
mer  v.  Fortescue,  Cas.  temp.  Hardw.  162,    449.] 

163.  5  2  Daniel's  Chan.  Pr.  1035,  note  (Per- 

^  Ibid.  kins's  edit.);  Id.  1043;  Asliton  v.  Parker, 

2  Ibid.  14  Sim.  632.  But  where  there  are  several 
*  Bull.  N.  P.  286.  But  where  the  same  dcfendant.s,  one  of  wlioni  alone  lias  an  in- 
jury are  also  to  assess  damages  against  terest  in  defeating  the  i)laintilf 's  claim,  the 
the  witness,  it  seems  he  is  not  admissible,  evidence  of  the  defendant  so  interested, 
See  ;Mash  i\  Smith,  1  C.  &  P.  577  ;  supra,  though  taken  in  behalf  of  a  co-defendant, 
§  356.  [Where  the  court  in  its  discretion  is  held  inadmissible.  Clark  r.  Wyhurn, 
orders  several  actions,  depending  on  the  12  Jur.  613.  It  has  been  held  in  Massa- 
same  evidence,  to  be  tried  together,  tlie  chiigelts,  that  the  answer  of  one  defendant, 
testimony  of  a  witness  who  is  competent  so  far  as  it  is  responsive  to  the  bill,  may 
in  one  of  the  actions  is  not  to  be  excluded  be  read  by  another  defendant,  as  evidence 
because  it  is  inadmissible  in  the  others,  in  his  own  favor.  Mills  r.  Gore,  20  Pick, 
and  maj'  possibly  have  some  effect  on  the  28. 

decision  of  them  ;  and  the  jury  should  be  "  Steed  v.  Oliver,  11  Jur.  365 ;  Paris  v. 

directed  to  ct)nfine  the  testimony  of  the     Hughes,  1  Keen,  1 ;  Van  i-.  Corpe,  3  My. 
witness  to  the  case  in  which  he  is  compe-    &  K.  26'J. 
tent.     Kimball  v.  Thompson,  4  Cush.  441. 
VOL.  I.  35 


410  LAW   OF   EVIDENXE.  [PART   III. 

merely  a  trustee,  or  has  no  beneficial  interest  in  the  matter  in 
question. 1  Nor  can  a  co-plaintiff  be  examined  by  a  plaintiff,  with- 
out the  consent  of  the  defendant.  The  course  in  the  latter  of  such 
cases  is,  to  strike  out  his  name  as  jilaintiff,  and  make  him  a  de- 
fendant ;  and,  in  the  former,  to  file  a  cross-bill.^ 

§  362.  The  i)rinciples  which  govern  in  tlie  admission  or  exclu- 
sion of  parties  as  witnesses  in  civil  cases  are  in  general  apj)li- 
cable,  with  the  like  force,  to  criminal  jjrosecutions,  except  so  far  as 
they  are  affected  by  particular  legislation,  or  by  considerations  of 
pulilic  policy.  In  these  cases,  the  state  is  the  party  prosecuting, 
though  the  process  is  usually,  and  in  some  cases  always,  set  in 
motion  by  a  private  individual,  commonly  styled  the  prosecutor. 
In  general,  this  individual  has  no  direct  and  certain  interest  in 
the  event  of  the  prosecution ;  and  therefore  he  is  an  admissible 
witness.  Formerly,  indeed,  it  was  supposed  that  he  was  incom- 
petent, by  reason  of  an  indirect  interest,  arising  from  the  use  of 
the  record  of  conviction  as  evidence  in  his  favor  in  a  civil  suit ; 
and  this  opinion  was  retained  down  to  a  late  period,  as  applicable 
to  cases  of  forgery,  and  especially  to  indictments  for  perjury. 
But  it  is  now  well  settled,  as  will  hereafter  more  particularly  be 
showji,^  that  the  record  in  a  criminal  prosecution  cannot  Ije  used 
as  evidence  in  a  civil  suit,  cither  at  law  or  in  equity,  except  to 
prove  the  mere  fact  of  the  adjudication,  or  a  judicial  confession 
of  guilt  by  the  party  indicted.^     The  prosecutor,  therefore,  is  not 

/     1  The  reason  of  this  rule  has  often  been  Johns.  Ch.  240;  2  Daniel's  Ch.  Pr.  455, 

called  in   question ;   and   the   opinion   of  45(5 ;   Piddoek   i\  Brown,  3  P.  W.  288 ; 

many  of  the  profession  is  inclined  in  taAT)r  ]\Iurray   v.    Shadwell,    2   V.    &  B.   401; 

of  making  the  right  of  examination  of  par-  Hoffm.  Master  in  Chanc.  18,  19;  Cotton 

ties  in  equity  reciprocal,  without  the  in-  v.  Luttrell,  1  Atk.  451. 

tervention  of  a  cross-bill.     See  1  Smith's  ^  Infra,  §  537. 

Ch.  Pr.  45y,  n.  (1) ;   Keport  on  Chancery  *  Rex  v.  Boston,  4  East,  572;  Bartlett 

Practice,  App.  p.  153,  Q.  49.     Sir  Samuel  v.  Pickersgill,  Id.  577,  n. ;  Gibson  v.  Mc- 

Komilly  was  in  favor  of  such  change  in  Carty,  Cas.  temp.  Hardw.  311 ;  llichard- 

the  practice.     Id.  p.  54,  Q.  266 ;  1  Hoif-  son  v.  Williams,  12  Mod.  319  ;   Reg.  v. 

man's  Ch.  Pr.  345.    In  some  of  the  United  Moreau,  36  Leg.  Obs.  69;  11  Ad.  &  EL 

States,   this   has    already   been   done   by  1028;  ?V|/"ra,  §  537.     The  exception  which 

\stat\ite.     See  New  York  Code  of  Practice,  had  grown  up  in  the  case  of  forgery  was 

§§  390,  395,  396  (Blatchford's  edit.) ;  Ohio,  admitted  to  be  an  anomaly  in  the  law,  in 

Rev.  St.  1841,  ch.  87,  §  26;  Missouri,  Rev.  4  East,  582,  per  Lord  lOllcnborough,  and 

St.  1845,  ch.  137,  art.  2,  §§   14,  15 ;  New  in  4  B.  &  Aid.  210,  per  Abbott,  C.  J. ;  and 

Jersci/,  Rev.  St.  1846,  tit.  23,  ch.  1,  §  40;  was  finally  removed   by  the  declaratory 

Texas,  Hartley's  IJig.  arts.  735,  739;  Wis-  act,  for  such  in  effect  it  certainly  is,  of  9 

co«s/»,  Rev.  St.  1849,  ch.  84,  §  30;   Cali-  Geo.  IV.,  c.  32,  §  2.     In   this   country, 

foriiiu,  Rev.  St.  1850,  ch.  142,  §  296-303.  with  the  exception  of  a  few  early  cases, 

2  1  Smith's  Ch.  Pr.  343,  344 ;  1  Hoff"-  the  party  to  the  forged   instrument  has 

man's    Ch.   Pr.    48;5-488.     See    further,  been  held  admissible  as  a  witness,  on  the 

Gresky  on  Evid.  242,  243,  244 ;   2  Mad.  general   principles   of    the    criminal  law. 

Chan.  415,  416;  Neilson  v.  INIcDonald,  6  See  Commonwealth  v.  Snell,  3  Mass.  82; 

Johns.  Ch.  201 ;  Souverbye  v.  Arden,  1  The  People  v.  Dean,  6  Cowen,  27  ;  Furber 


CHAP.  II.]  COMPETENCY   OF   WITNESSES.  411 

iucompctciit  on  the  ground  that  he  is  a  party  to  the  record;  hut 
whether  any  interest  wliich  he  may  have  in  tlie  conviction  of  the 
oifcnder,  is  sufficient  to  render  him  incompetent  to  testify,  will  he 
considered  more  a])proj)riately  under  the  head  of  incompetency, 
from  interest.^ 

§  363.  In  regard  to  defendants  in  criminal  cases,  if  the  state 
would  call  one  of  tlicm^  as  a  witness  against  others  in  the  same 
indictment,  this  can  he  done  only  by  discharging  him  from  the 
record  ;  as,  by  the  entry  of  a  nolle  prosequi;^  or,  by  an  order  for 
his  dismissal  and  discharge,  where  he  has  pleaded  in  abatement 
as  to  his  own  person,  and  the  plea  is  not  answered  ;3  or,  by  a 
verdict  of  acquittal,  where  no  evidence,  or  not  sufficient  evidence, 
has  been  adduced  against  him.  In  the  former  case,  where  there 
is  no  i)roof,  he  is  entitled  to  the  verdict ;  and  it  may  also  be  ren- 
4ered  at  the  request  of  the  other  defendants,  who  may  then  call 
liini  as  a  witness  for  themselves,  as  in  civil  cases.  In  the  latter, 
where  there  is  some  evidence  against  him,  but  it  is  deemed  in- 
sufficient, a  separate  verdict  of  acquittal  may  be  entered,  at  the 
instance  of  the  prosecuting  officer,  who  may  then  call  him  as 
a  witness  against  the  others.'*  On  the  same  principle,  where  two 
were  indicted  for  an  assault,  and  one  submitted  and  was  fined, 
and  paid  the  fine,  and  the  other  pleaded  "  not  guilty  ;  "  the  former 
was  admitted  as  a  competent  witness  for  the  latter,  because  as  to 
the  witness  the  matter  was  at  an  end.^  But  the  matter  is  not 
considered  as  at  an  end,  so  as  to  render  one  defendant  a  com- 
petent witness  for  another,  by  any  thing  short  of  a  final  judgment, 
or  a  plea  of  guilty.^  Therefore,  where  two  were  jointly  indicted 
for  uttering  a  forged  note,  and  the  trial  of  one  of  them  was  post- 
poned, it  was  held,  that  he  could  not  be  called  as  a  witness  for 
the  other.^  So,  where  two,  being  jointly  indicted  for  an  assault, 
pleaded  separately  "  not  guilty,"  and  elected  to  be  tried  separately, 


V.  Ilillianl,  2  N.  Ilamp.  480;  KespuWica  v.  v.  Lyons,  9  C.  &  P.  555;  Regina  v.  "Wil- 

Koss,  2  Dall.  2o'J;  Tlie  State  v.  Foster,  3  liams,  8  C.  &  P.  283;  snimi,  §  358;  Com- 

McConl,  -142.  monwcalth  v.  Eastman,  1  Cash.  18i). 

1  Infra,  §  412-414.  "^  Kci,nna  v.  Ilincks,  1  Denis.  C.  C.  84. 

2  Bu11,'n.  P.  285;  Cas.  temp.  Hardw.  [Where  two  defemlants  were  jointly  in- 
ICo.  dieted  for  an  assault,  and  one  was  default- 

^  Rex  V.  Sherman,  Cas.  temp.  Hardw.  ed  on  his  recognizance,  his  wife  was  held 

303.  to  be  a  competent  witness  for  the  other 

*  Rex  V.  Rowland,  Ry.  &  M.  401 ;  Rex  defendant.     State  v.  Worthing,  31  Maine, 

V.  Mutineers  of  the  "Bomity,"  cited  arg.  62.] 
1  East,  312,  313.  '  Conuuonwealth    v.    Marsh,  10  Pick. 

°  Rex  V.  Fletcher,  1  Stra.  C33;  Regina  57. 


412 


LAW   OF   EVIDENCE. 


[part  III. 


V 


it  was  held,  that  the  one  tried  first  could  not  call  the  other  as  | 
a  witness  for  liim.^ 

§  364.  Before  we  disnaiss  the  subject  of  parties,  it  may  be  proper 
to  take  notice  of  the  case,  where  the  facts  are  personally  known 
by  the  judge  before  whom  the  cause  is  tried.  And  whatever  differ- 
ence of  opinion  may  once  have  existed  on  this  point,  it  seems  now 
to  be  agreed,  that  the  same  person  cannot  be  both  ivitness  and 
judge,  in  a  cause  which  is  on  trial  before  him.  If  he  is  the  sole 
judge,  he  cannot  be  sworn  ;  and  if  he  sits  with  others,  he  still  can 
hardly  be  deemed  capable  of  impartially  deciding  on  the  admissi- 
bility of  his  own  testimony,  or  of  weighing  it  against  that  of 
another.2  Whether  his  knowledge  of  common  notoriety  is  admis- 
sible proof  of  that  fact  is  not  so  clearly  agreed.^  On  grounds  of 
public  interest  and  convenience,  a  judge  cannot  be  called  as  a  wit- 
ness to  testify  to  what  took  place  before  him  in  the  trial  of  another 
cause ;  *  though  he  may  testify  to  foreign  and  collateral  matters, 
which  happened  in  his  presence  while  the  trial  was  pending,  or 
after  it  was  ended.^  In  regard  to  attorneys,  it  has  in  England 
been  held  a  very  objectionable  proceeding  on  the  part  of  an 'at- 
torney to  give  emlence,  when  acting  as  advocate  in  the  cause; 
and  a  sufficient  ground  for  a  new  trial.*^     But  in  the  United  States 


1  The  People  v.  Bill,  10  Johns.  95; 
[Mclntyre  v.  People,  5  Selden,  38. J  In 
Hex  V.  Lafone,  5  Esp.  154,  where  one  de- 
fendant suH'ered  judgment  by  default, 
Lord  EUenborough  held  him  incompetent 
to  testify  for  the  others ;  apparently  on 
the  ground,  that  there  was  a  community  of 
guilt,  and  that  tlie  offence  of  one  was  the 
otfence  of  all.  Put  no  authority  was  cited 
in  the  case,  and  the  decision  is  at  variance 
with  the  general  doctrine  in  cases  of  tort. 
Tlie  reason  given,  moreover,  assumes  the 
very  point  in  dispute,  namely,  whether 
there  was  any  guilt  at  all.  The  indict- 
ment was  for  a  misdemeanor,  in  obstruct- 
ing a  revenue  officer  in  the  execution  of 
his  duty.  See  1  Phil.  Evid.  68.  But 
where  two  were  jointly  indicted  for  an 
assault  and  battery,  and  one  of  thom,  on 
motion,  was  tried  first,  the  wife  of  the 
other  was  held  a  competent  witness  in  his 
favor.  Moffit  v.  The  State,  2  Humph.  99. 
And  see  Jones  i-.  The  State,  1  Kelly,  610; 
The  Commonwealth  v.  Manson,  2  Ashm. 
31 ;  anpra,  §  335,  note ;  Tlie  State  v. 
Worthing,  1  Redingt.  (31  Maine)   62. 

2  Ross  V.  Buhler,  2  Martin,  N.  S.  313. 
So  is  the  law  of  Spain,  Partid.  3,  tit.  16, 1. 
19  ;  1  Moreau  &  Carlton's  Tr.  p.  200 ;  and 
of  Scotland,  Glassford  on  Evid.  p.  602; 


Tait  on  Evid.  432 ;  Stair's  Inst,  book  iv. 
tit.  45,  4 ;  Erskine's  Inst,  book  iv.  tit.  2, 
33.  If  his  presence  on  the  bench  is  neces- 
sary to  the  legal  constitution  of  the  court, 
he  cannot  be  sworn  as  a  witness,  even  by 
consent ;  and  if  it  is  not,  and  liis  testimony 
is  necessary  in  the  cause  on  trial,  he 
should  leave  the  bench  until  the  trial  is  fin- 
ished. Morss  V.  Morss,  4  Am.  Law  Pep.  611, 
N.  s.  This  pl-inciple  lias  not  been  extend- 
ed to  jurors.  Though  the  jury  mjiy  use 
their  general  knowledge  on  the  subject  of 
any  question  before  them;  yet,  if  any 
juror  has  a  particular  knowledge,  as  to 
which  he  can  testify,  he  must  be  sworn  as 
a  witness.  Rex  v.  Rosser,  7  C.  &  P.  648  ; 
Stones  V.  Byron,  4  Dowl.  &  L.  893.  See 
infra,  §  386,  note. 

3  Lord  Stair  and  Mr.  Ersldne  seem  to 
have  been  of  opinion  that  it  was,  "  unless 
it  be  overruled  by  pregnant  contrary  evi- 
dence." But  Mr.  Glassford  and  Mr.  Tait 
are  of  the  contrary  opinion.  See  the  places 
cited  in  the  preceding  note. 

*  Regina  v.  Gazard,  8  C.  &  P.  595,  per 
Patteson,  J. 

5  Rex  V.  E.  of  Thanet,  27  Howell's  St. 
Tr.  847,  848.  See  supra,  §  252,  as  to  the 
admissibihty  of  jurors. 

«'  Dunn  V.  Pack  wood,  11  Jur.  242,  a. 


\AJ 


CHAP.  II.]  COMPETENCY   OF   WITNESSES.  413 

no  case  has  been  found  to  proceed  to  that  extent ;  and  the  fact  is 
hardly  over  known  to  occur. 

§  365.  AVe  proceed  now  to  consider  the  second  class  of  persons 
incompetent  to  testify  as  witnesses,  namely,  that  of  persons  defi- 
cient IN  understanding.  We  have  already  seen  ^  that  one  of  the 
main  securities,  which  the  law  has  provided  for  the  purity  and 
truth  of  oral  evidence,  is,  that  it  be  delivered  under  the  sanction  of 
an  oath ;  and  that  this  is  none  other  than  a  solemn  invocation 
of  the  Supreme  Being,  as  the  Omniscient  Judge.  The  purpose  of 
the  law  being  to  lay  hold  on  the  conscience  of  the  witness  by  this 
religious  solemnity,  it  is  obvious,  that  persons  incapable  of  com- 
prehending the  nature  and  obligation  of  an  oath  ought  not  to  be 
admitted  as  witnesses.  The  repetition  of  the  words  of  an  oath 
would,  in  their  case,  be  but  an  unmeaning  formality.  It  makes 
no  difference  from  what  cause  this  defect  of  understanding  may 
have  arisen ;  nor  whether  it  be  temporary  and  curable,  or  perma- 
nent ;  whether  the  party  be  hopelessly  an  idiot,  or  maniac,  or  only 
occasionally  insane,  as  a  lunatic ;  or  be  intoxicated ;  or  whether 
the  defect  arises  from  mere  immaturity  of  intellect,  as  in  the  case 
of  children.  While  the  deficiency  of  understanding  exists,  ha  the 
cause  of  what  nature  soever,  the  person  is  not  admissible  to  be 
sworn  as  a  witness.  But  if  the  cause  be  temporary,  and  a  lucid 
interval  should  occur,  or  a  cure  be  effected,  the  competency  also 
is  restored.^ 

1  Supra,  §  327.  times  existing  upon  that  subject,  it  is  er- 

2  6  Com.  Dig.  351,  352,  Testmoifjne,  roneous  to  suppose  tiie  mind  of  sucli  a 
A.  1 ;  Livingston  v.  Iviersted,  10  Johns,  person  really  sound  on  other  sulyects ; 
362;  Evans  v.  Hettich,  7  Wheat.  453,  and  that  therefore  the  will  of  such  a  per- 
470;  White's  case,  2  Leach,  Cr.  Cas.  482;  son,  though  apparently  ever  so  rational 
Tait  on  Evid.  pp.  342,  343.  The  fact  of  and  proper,  was  void.  Waring  v.  Waruig, 
want  of  understanding  is  to  be  proved  by  12  Jur.  U47,  Priv.  C.  Here,  tlie  power  of 
the  objecting  party,  by  testimony  aliunde,  perceiving  facts  is  sound,  but  the  faculty 
Robinson  i\"Dana,  16  Verm.  474.  See,  as  of  comparing  and  of  judging  is  impaired, 
to  into.xication,  Hartford  i\  Palmer,  16  But  where,  in  a  trial  for  manslaughter,  a 
Johns.  143  ;  Gebhart  v.  Skinner,  15  S.  &  lunatic  patient  was  admitted  as  a  witness, 
R.  235;  Heinec.  ad  Pandect.  Pars.  3,  who  had  been  confined  in  a  lunatic  asy- 
§  14.  Whether  a  monomaiiluc  is  a  compe-  lum,  and  who  labored  under  the  delusion, 
tent  witness  is  a  point  not  known  to  have  both  at  tlie  time  of  the  transaction  and  of 
been  directly  decided ;  and  upon  which  the  trial,  that  he  was  possessed  by  twenty 
text-writers  ililler  in  opinion.  Mr.  Roscoe  tliousand  spirits,  but  whom  the  medical 
deems  it  the  safest  rule  to  exclude  their  witness  believed  to  be  capable  of  giving 
testimony.  Rose.  Crim.  Evid.  p.  128.  an  account  of  any  transaction  that  bap- 
Mr.  liest  considers  this  "  hard  measure."  penod  before  his  eyes,  and  who  ai)peared 
Best,  Princ.  Evid.  p.  168.  In  a  recent  to  understand  the  obligation  of  an  oath, 
case  before  the  Privy  Council,  where  a  and  to  believe  in  future  rewards  and  pun- 
will  was  contested  on  the  ground  of  inca-  ishments;  —  it  was  held,  that  his  testi- 
pacitjr  in  the  mind  of  the  testator,  it  was  mony  was  properly  received.  And  that 
held,  that  if  the  mind  is  unsound  on  one  where  a  person,  under  an  insane  delusion, 
subject,  and  this  unsoundness  is  at  all  is  oU'ered  as  a  witness,  it  is  for  the  judge, 

35* 


41-1  LAW   OF  EVIDENCE.  [PART  III. 

§  366.  In  regard  to  persons  deaf  and  dumb  from  their  birth,  it 
has  been  said  that,  in  presumption  of  law,  they  are  idiots.  And 
though  this  presumption  has  not  now  the  same  degree  of  force 
which  was  formerly  given  to  it,  that  unfortunate  class  of  persons 
being  found  by  the  light  of  modern  science,  to  be  much  more 
intelligent  in  general,  and  susceptible^  of  far  higher  culture,  than 
was  once  supposed ;  yet  still  the  presumption  is  so  far  operative, 
as  to  devolve  the  burden  of  proof  on  the  party  adducing  the  wit- 
ness, to  show  that  he  is  a  person  of  suflicient  understanding. 
This  being  done,  a  deaf  mute  may  be  sworn  and  give  evidence, 
by  means  of  an  interpreter.^  If  he  is  able  to  communicate  his 
ideas  perfectly  by  writing,  he  will  be  required  to  adopt  that,  as. the 
more  satisfactory,  and  therefore  the  better  method ;  ^  but  if  iiis 
knowledge  of  that  method  is  imperfect,  he  will  be  permitted  to 
testify  by  means  of  signs.^ 

§  367.  But  in  respect  to  children,  there  is  no  precise  age  within 
which  they  are  absolutely  excluded,  on  the  presumption  that  they 
have  not  sufficient  understanding.  At  the  age  of  fourteen,  every 
person  is  presumed  to  have  common  discretion  and  understanding, 
until  the  contrary  appears ;  but  under  that  age  it  is  not  so  pre- 
sumed ;  and  therefore  inquiry  is  made  as  to  the  degree  of  under- 
standing, which  the  child  offered  as  a  witness  may  possess ;  and 
if  he  appears  to  have  sufficient  natural  intelligence,  and  to  have 
been  so  instructed  as  to  comprehend  the  nature  and  effect  of  an 
oath,  he  is  admitted  to  testify,  whatever  his  age  may  be.^  This 
examination  of  the  child,  in  order  to  ascertain  his  capacity  to  be 
sworn,  is  made  by  the  judge  at  his  discretion ;  and  though,  as  has 
been  just  said,  no  age  has  been  precisely  fixed,  within  which  a 
child  shall  be  conclusively  presumed  incapable,  yet,  in  one  case 
a  learned  judge  promptly  rejected  the  dying  declarations  of  a  child 
of  four  years  of  age,  observing,  that  it  was  quite  impossible  that 

at  the  time,  to  decide  upon  his   compe-  confitori  nequeat,  nee  inficiari,  emendet 

tency  as  a  witness,  and  for  the  jury  to  pater  scelera  ipsius."     Vid.  Leges  Barba- 

judge  of  tlie  credibility  of  iiis  evidence,  ror.  Antiq.  vol.  4,  p.  249 ;  Ancient  Laws 

Keg.  V.  Hill,  15  Jur.  470;    5  Eng.  Law  &  and  Statutes  of  England,  vol.  1,  p.  71. 
Eq.  Uej).  547 ;  5  Cox,  Cr.  Cos.  259;  [Hoi-         ^  Morrison  v.  Lennard,  3  C.  &  P.  127. 
comb  V.  llolcomb,  28  Conn.  177.]  ^  The  State  v.  ])e  Wolf,  8  Conn.  93 ; 

1  llustin's  case,  1  Leach,  Cr.  Cas.  455;  Commonwealth   v.   Hill,   14    Mass.   207; 

Tait  on  Evid.  p.  343;   1  Russ.  on  Crimes,  Snvder  v.  Nations,  4  Blackf.  295. 
p.  7  ;  1  Hale,  V.  C.  34.     Lord  Hale  refers,  *  McXally's  Evid.  p.  149,  ch.  11 ;  Bull, 

for  authority  as  to  the  ancient  presump-  N.  P.  293 ;  1  Hale,  P.  C.  302 ;  2  Russ.  on 

tion,  to  the  Laws  of  King  Alfred,  c.  14,  Crimes,  p.  590;   Jackson  v.  Gridley,  18 

whicii  is  in  tiiese  words  :  — "Si  quis  mu-  Johns.  98. 
tus  vcl  surd  us  natus  sit,  ut  peccata  sua 


CHAP.  11.]  COMPETENCY   OF   WITNESSES.  415 

she,  liowcvcr  precocious  her  mind,  could  have  had  that  idea  of 
a  future  state,  which  is  necessary  to  make  such  declarations  ad- 
missible.^ On  the  other  hand,  it  is  not  unusual  to  receive  the 
testimony  of  children  under  nine,  and  sometimes  even  under 
seven  years  of  age,  if  they  appear  to  be  of  sufficient  understand- 
ing ;  2  and  it  has  been  admitted  even  at  the  age  of  five  years.'^  If 
the  child,  being  a  principal  witness,  appears  not  yet  sufficiently 
instructed  in  the  nature  of  an  oath,  the  court  will,  in  its  discretion, 
put  off  the  trial,  that  this  may  be  done."*  But  whether  the  trial 
ought  to  be  put  o&  for  the  purpose  of  instructing  an  adult  witness 
has  been  doubted.^ 

§  oG8.  The  THIRD  CLASS  of  persons  incompetent  to  testify  as 
witnesses  consists  of  those  who  are  insensible  to  the  obligations 
OP  an  oath,  from  defect  of  religious  sentiment  and  belief.  The 
very  nature  of  an  oath,  it  being  a  religious  and  most  solemn  appeal 
to  God,  as  the  Judge  of  all  men,  presupposes  that  the  witness 
believes  in  the  existence  of  an  omniscient  Supreme  Being,  who  is 
"  the  rewarder  of  truth  and  avenger  of  falsehood  ;  "  ^  and  that,  by 
such  a  formal  appeal,  the  conscience  of  the  witness  is  affected. 
Without  this  belief,  the  person  cannot  be  subject  to  that  sanction, 
which  the  law  deems  an  indispensable  test  of  truth.'^     It  is  not 

1  Eex  V.  Pike,  3  C.  &  P.  598;   The  understanding  on  the   subject,   her    evi- 

People  V.  IMcXair,  21  Wend.  608.    Neither  dence  was  rejected.      Rex  v.  WiUiams,  7 

can  the  declarations  of  such  a  cliild,  if  C.    &   P.    320.      In  a  more  recent  case, 

hving,  be  received  in  evidence.     Rex  v.  where  the  principal  witness  for  the  prose- 

Brasier,  1  East,  P.  C.  443.  cution   was  a  female  child,  of  six  years 

-  1  East,  P.  C.  442 ;  Commonwealth  old,  wholly  ignorant  of  the  nature  of  an 

I'.  Ilutcliinson,  10  Mass.  225;    McNally's  oath,   a    postponement  of   the   trial   was 

Evid.  p.   154 ;    The  State  v.'Whittier,  8  moved  for,  that  she  might  be  instructed 

Shcpl.  341.  on  that  subject;    but  I'ollock,  C.  B.,  re- 

^  Kex   V.   Brasier,  1  Leach,   Cr.   Cas.  fused  the  motion  as  tending  to  endanger 

237 ;  Bull.  N.  P.  2'J3,  s.  c. ;  1  East,  P.  C.  the   safety  of  public  justice ;    observing 

443,  s.  c.  that  more  probably  would  be  lost  in  mem- 

*  McNally's  Evid.  p.  154;  Rex  v.  ory,  than  would  be  gained  in  point  of  re- 
White,  2  Leach,  C.  Cas.  482,  note  (a);  ligious  education;  adding,  however,  that 
Rex  V.  Wade,  1  Mood.  Cr.  Cas.  ^d.  But  in  cases  where  the  intellect  was  sufti- 
in  a  late  case,  before  3Ir.  Justice  Patteson,  ciently  matured,  but  the  education  only 
the  learned  judge  said,  that  he  must  be  had  been  neglected,  a  postponement  might 
satisfied  that  the  child  felt  the  binding  be  very  proper.  Regina  v.  Jsicholas,  2  C. 
obligation   of  an   oath,  from  the  general  &  K.  246. 

course  of   her  religious  education  ;    and  "  See  Rex  i'.  Wade,  1  Mood.  Cr.  Cas. 

that  tlie  eflect  of  the  oath  upon  the  con-  86. 

science  should  arise  from   religious   feel-  <•  Per  Ld.  Ilardwicke,  1  Atk.  48.     The 

ingsofapermanentnature,  and  not  merely  opinions  of  the  earlier  as  well  as  later  ju- 

from  instructions,  confined  to  the  nature  rists,  concerning  the  nature  and   obliga- 

of  an  oath,  recently  communicated,  for  the  tion  of  an  oath,  are  quoted  and  discussed 

purpose   of   the    particular    trial.      And,  much  at  large,  in  Omichund  v.  Barker,  1 

therefore,  the  witness  having  been  visited  Atk.  21,  and  in  Tyler  on  (.)aths,  passim, 

but  twite  by  a  clergyman,  who  had  given  to  which  the  learned  reader  is  referred, 

her  some  instructiuns  as  to  the  nature  of  "  1  Stark.  Evid.  22.    "  The  law  is  wise 

an  oath,  but  still  she  had  but  an  imperfect  in  requiring  the  highest  attainable  sane- 


416  LAW    OF    EVIDENCE.  [PART   III. 

sufficient,  that  a  witness  believes  himself  bound  to  speak  the  truth 
from  a  rc|^-ard_ to  character,  or  to  the  common  interests  of  society, 
or  from  fear  of  the  punishment  which  the  law  inflicts  upon  persons 
guilty  of  perjury.  Such  motives  have  indeed  their  influence,  but 
they  are  not  considered  as  aflbrding  a  sufficient  safeguard  for  the 
strict  observance  of  truth.  Our  law,  in  common  with  the  law  of 
most  civilized  countries,  requires  the  additional  security  afforded 
by  the  religious  sanction  implied  in  an  oath ;  and,  as  a  necessary 
consequence,  rejects  all  witnesses,  who  are  incapable  of  giving 
this  security .1  Atheists,  therefore,  and  all  infidels,  that  is,  those 
who  profess  no  religion  that  can  bind  their  consciences  to  speak 
truth,  are  rejected  as  incompetent  to  testify  as  witnesses.^ 

§  369.  As  to  the  nature  and  degree  of  religious  faith  required  in 
a  witness,  the  rule  of  law,  as  at  present  understood,  seems  to  be 
this,  that  the  person  is  competent  to  testify,  if  he  believes  in  the 
being  of  God,  and  a  future  state  of  rewards  and  punishments; 
that  is,  that  Divine  punishment  will  be  the  certain  consequence 
of  perjury.  It  may  be  considered  as  now  generally  settled,  in  this 
country,  that  it  is  not  material,  whether  the  witness  believes  that 
the  punishment  will  be  inflicted  in  this  world,  or  in  the  next.  It 
is  enough,  if  he  has  the  religious  sense  of  accountability  to  the 
Omniscient  Being,  who  is  invoked  by  an  oath.^ 


tion  for  the  truth  of  testimony  given  ;  and  ^  1  Phil.  Evid.  10  (9th  edit.), 
is  consistent  in  rejecting;  all  witnesses  in-  ^  Bull.  N.  P.  292;  1  Stark.  Evid.  22; 
capable  of  feeling  this  sanction,  or  of  re-  1  Atk.  40,  45 ;  1  Phil.  Evid.  10  (9th  edit.), 
ceiving  this  test ;  whether  this  incapacity  The  objection  of  incompetency,  from  the 
arises  trom  the  imbecility  of  their  under-  want  of  belief  in  the  existence  of  God,  is 
standing,  or  from  its  perversity.  It  does  aboHshed,  as  it  seems,  in  ilichigan,  by 
not  impute  guilt  or  blame  to  either.  K  the  force  of  the  statute  which  enacts  that  no 
witness  is  evidently  intoxicated,  he  is  not  person  shall  be  deemed  incompetent  as  a 
allowed  to  be  sworn ;  because,  for  the  witness  "  on  account  of  his  opinions  on 
time  being,  he  is  evidently  incapable  of  the  sulyect  of  rehgion."  Pev.  Stat.  1846, 
feeling  the  force  and  obligation  of  an  oath.  ch.  102,  §96.  So  in  Maine,  Pev.  Stat. 
The  non  compos,  and  the  infant  of  tender  ch.  82.  And  in  Wiaconsin,  Const.  Art.  1, 
age,  are  rejected  for  the  same  reason,  but  §  18.  And  in  Missouri,  Pev.  Stat.  1845, 
without  blame.  The  atheist  is  also  re-  ch.  186,  §  21.  And  in  Mass.  Gen.  Stat, 
jected,  because  he,  too,  is  incapable  of  ch.  181,  §  12.  In  some  other  states,  it  is 
realizing  the  obligation  of  an  oath,  in  con-  made  sutlicient,  by  st-atuto,  if  the  witness 
sequence  of  his  unbelief.  Tlie  law  looks  believes  in  the  existence  of  a  Supreme  Be- 
only  to  the  fact  of  incapacity,  not  to  the  ing.  Connecticut,  Rev.  Stat.  1849,  tit.  1, 
cause,  or  the  manner  of  avowal.  Whether  §140;  New  Hampshire,  liev.  Stat.  1842, 
it  be  calmly  insinuated  with  the  elegance  ch.  188,  §  9.  In  others,  it  is  requisite  that 
of  Gibbon,  or  roai'cd  forth  in  the  disgust-  the  witness  should  believe  in  the  exist- 
ing blasi)]iemies  of  Paine  ;  still  it  is  athe-  ence  of  a  Supreme  Being,  ivho  ivill  punish 
ism;  and  to  re(juire  the  mere  formality  of  false  swearing.  New  York,  Rev.  Stat, 
an  oath,  from  one  who  avowedly  despises,  vol.  2,  p.  505  (3d  edit.) ;  Missouri,  Rev. 
or  is  incapable  of  feehng,  its  peculiar  sane-  Stat.  1835,  p.  419. 

tion,  would  be  but  a  mockery  of  justice."  ^  The  proper  test  of  the  competency  of 

1  Law  Reporter,  pp.  346,  347.  a  witness  on  the  score  of  a  reUgious  be- 


CHAP.  II.] 


COMPETENCY   OP   WITNESSES. 


417 


§  370.  It  should  here  be  observed,  that  defect  of  religious  faith 
i&  never  presumed.  On  the  contrary,  the  law  presumes  that  every 
man  brought  up  in  a  Christian  land,  where  God  is  generally 
acknowledged,  does  believe  in  him,  and  fear  him.  The  charity 
of  its  judgment  is  extended  alike  to  all.  The  burden  of  proof 
is  not  on  the  party  adducing  the  witness,  to  prove  that  he  is  a 
believer ;  but  it  is  on  the  objecting  party,  to  prove  that  he  is  not. 
Neither  does  the  law  presume  that  any  man  is  a  hypocrite.  On 
the  contrary,  it  presumes  him  to  be  what  he  professes  himself  to 
be,  whether  atheist,  or  Christian ;  and  the  state  of  a  man's  opin- 
ions, as  well  as  the  sanity  of  his  mind,  being  once  proved  is,  as 
we  have  already  seen,i  presumed  to  continue  unchanged,  until  the 


contrary  is  shown. 


The  state  of  his  religious  beliefj  at  the  time 


he  is  offered  as  a  witness,  is  a  fact  to  be  ascertained ;  and  this 
is  presumed  to  be  the  common  faith  of  the  country,  unless  the 
ol)jector  can  prove  that  it  is  not.  The  ordinary  mode  of  showing 
this  is  by  evidence  of  his  declarations,  previously  made  to  others ; 
the  person  himself  not  being  interrogated ;  ^   for  the   object   of 


lief  was  settled,  upon  grreat  consideration, 
in  the  case  of  Oniichund  i\  Barker,  Willes, 
545 :  1  Atk.  21  s.  c.  to  be  the  belief  of  a 
God,  and  tliat  he  will  reward  and  punisli 
us  according  to  our  deserts.  This  rule 
was  recognized  in  Butts  v.  Swartwood,  2 
Cowen,  431 ;  The  People  v.  JNIatteson,  2 
Cowen,  438,  573,  note ;  and  by  Story,  J., 
in  Wakefield  v.  Koss,  5  Mason,  18 ;  9 
Dane's  Abr.  317,"S.  P. ;  and  see  Brock  v. 
Milligan,  1  Wilcox,  125 ;  Arnold  v.  Ar- 
nold, 13  Verm.  3iJ2.  Whether  any  beUef 
in  a  future  state  of  existence  is  necessary, 
provided  accountability  to  God  in  this  lite 
is  acknowledged,  is  not  perfectly  clear. 
In  Connnoii wealth  v.  Bacheler,  4  jVni.  Ju- 
rist, 81,  Thacher,  J.,  seemed  to  think  it 
was.  But  in  Hunscom  v.  Hunscom,  14 
Mass.,  184,  the  court  held,  that  mere  dis- 
belief in  a  future  existence  went  only  to 
the  credibility.  This  degree  of  disbelief 
is  not  inconsistent  with  the  taith  required 
in  Oniichund  v.  Barker.  The  only  case, 
clearly  to  the  coutrary,  is  Atwood  v.  Wel- 
ton,  7  Conn.  tj6.  In  Curtis  v.  Strong,  4  Day, 
51,  the  witness  did  not  believe  in  the  obli- 
gation of  an  oath;  and  in  Jackson  v.  Grid- 
ley,  18  Johns.  US,  he  was  a  mere  atheist, 
without  any  sense  of  religion  whatever. 
All  that  was  said,  in  these  two  cases, 
beyond  the  point  in  judgment,  wis  extra- 
judicial. In  Mdiiii'.  a  belief  in  the  exist- 
ence of  the  Supreme  Being  was  rendered 
sufficient,  by  Stat.  1833,  ch.  58,  without 
any  reference  to  rewards  or  punishments. 


Smith  V.  Coffin,  6  Shepl.  157;  but  even, 
this  seems  to  be  no  longer  required.  See 
supra,  §  368,  note.  See  further,  the  Peo- 
ple r.  McGarren,  17  Wend.  460 ;  Cuhbison. 
V.  McCreary,  2  Watts  &  Scrg.  262;  Brock" 
r.  Milligan,  10  Ohio,  121;  Thurston  v. 
Whitney,  2  Law  Rep.  18,  n.  s.  ;  [Blair  v. 
Seaver,  26  Pcnn.  St.  R.  274;  Bennett 
V.  State,  1  Swaim,  44.] 

1  Supra,  §  42.  The  State  v.  Stinson,  7 
Law  Reporter,  383.. 

■^  [The  question  whether  a  witness  is, 
or  is  not  an  atheist,  and  so  an  incompetent 
witness,  is  a  question  of  tact  for  the  pre- 
siding judge  alone,  and  his  decision  is  not 
o])en  to  exception.  Connuoiuvealth  v. 
Hills,  10  Cush.  530,  532.  The  want  of 
such  religious  Ijelief  must  be  established 
by  other  means  than  the  examination  of 
the  witness  upon  the  stand.  He  is  not  to 
be  questioned  as  to  his  religious  belief, 
nor  recpiired  to  dividge  his  opinion  upon 
that  sul)iect  in  answer  to  (piestions  {)ut  to 
liim  while  mider  examination.  If  he  is 
to  be  set  aside  for  want  of  sueli  religious 
belief,  the  fact  is  to  be  shown  by  other 
witnesses,  and  by  evidence  of  his  pre- 
viously expressed  opinions  voluntarily 
made  known  to  others.  By  Shaw,  C.  J., 
in  C<umnonwealth  r.  Smith,  2  Gray,  516. 
In  this  ease  the  witness  had  testified  in 
chief,  and  on  cross-examination  was  askeil 
if  he  believed  in  the  existence  of  a  God, 
and  replied  that  he  did.  Upon  tliis  the 
court    iuterpos«d    and    refused  to   allow 


418 


LAW   OF   EVIDENCE. 


[part   III. 


interrogating  a  witness,  in  these  cases,  before  he  is  sworn,  is  not 
to  obtain  the  knowledge  of  other  facts,  but  to  ascertain  from  his 
answers,  the  extent  of  his  capacity,  and  whether  he  has  sufficient 
understanding  to  ])e  sworn.^ 


counsel  to  put  further  questions  in  regard 
to  the  rehgious  helief  of  the  witness,  and 
the  court  say :  "  Aside,  therefore,  of  the 
propriety  of  allowing  further  inquiry,  after 
the  witness  had  answered  attirinatively  the 
general  question  of  his  helief  in  the  exist- 
ence of  God,  in  tlie  opinion  of  the  court, 
the  whole  in(iuiry  of  the  witness  upon  tiiis 
matter  was  irregular  and  unauthorized."] 
i  Swift's    Evid.  48;    Smith   v.   Coffin, 

6  Shepl.  157.  It  has  been  questioned, 
whether  the  evidence  of  his  declarations 
ought  not  to  be  confined  to  a  period  shortly 
anterior  to  the  time  of  proving  them,  so 
that  no  change  of  opinion  might  be  pre- 
sumed. IJrock  V.  Milligan,  1  Wilcox,  126, 
per  Wood,  J. 

"  The  witness  himself  is  never  ques- 
tioned in  mudi'rn  practice,  as  to  his  religious 
belief,  though  formerly  it  was  otherwise. 
(1  Swift's  Dig.  7o9;  5  Mason,  19;  Ameri- 
can Juri.st,  vol.  4,  p.  7'J,  note.)  It  is  not 
allowed  even  afYer  he  has  Ijeen  sworn. 
(The  Queen's  case,  2  B.  &  B.  284.)  Not 
because  it  is  a  question  tending  to  disgrace 
Juni,  but  because  it  would  be  a  personal 
scrutiny  into  the  state  of  his  faith  and 
conscience,  foreign  to  the  sf)irit  of  our 
institutions.  No  man  is  obliged  to  avow 
his  belief;  but  if  he  voluntarily  does  avow 
it,  there  is  no  reason  why  the  avowal 
should  not  be  proved,  like  any  other  fact. 
The  truth  and  sincerity  of  the  avowal,  and 
the  continuance  of  the  belief  thus  avowed, 
are  presumed,  and  very  justly  too,  till 
they  are  disproved.  If  his  opinions  iiave 
been  subsequently  changed,  this  change 
will  generally,  if  not  always,  be  provable 
in  the  same  mode.     (Atwood  v.  Welton, 

7  Conn.  tJ6  ;  Curtis  ('.  Strong,  4  Day,  51 ; 
Swift's  Evid.  48-50;  Scott  v.  Hooper,  14 
Verm.  5o5 ;  Mr.  Christian's  note  to  o  Bl. 
Comra.  369;  1  Phil.  Evid.  18;  Common- 
wealth V.  Bachelor,  4  Am.  Jur.  79,  note.) 
If  tlie  change  of  opinion  is  very  recent, 
this  furnishes  no  good  ground  to  admit 
the  witness  himself  to  declare  it ;  because 
of  the  greater  inconvenience  which  wovdd 
result  from  thus  opening  a  door  to  fraud, 
than  from  adhering  to  the  rule  requiring 

I  other  evidence  of  tliis  fact.  The  old  cases, 
■  in  which  the  witness  himself  was  ques- 
tioned as  to  his  belief,  have  on  this  point 
I  been  overruled.  See  Christian's  note  to  3 
Bl.  Conmi.  [369j  note  (30).  The  law, 
therefore,  is  not  reduced  to  any  absunhty 
in  this  matter.     It  exercises  no  inquisito- 


rial power ;  neither  does  it  resort  to  sec- 
ondary or  liearsay  e\ddence.  If  the  wit- 
ness is  objected  to,  it  asks  third  persons 
to  testify,  wdiether  he  has  declared  his 
belief  in  God,  and  in  a  future  state  of  re- 
wards and  pimishments,  &c.  Of  this  fkct 
they  are  as  good  witnesses  as  he  could  he; 
ami  tlie  testiuiony  is  ])rimary  and  direct. 
It  should  further  be  noticed,  that  the  ques- 
tion, whether  a  person,  about  to  be  sworn, 
is  an  atheist  or  not,  can  never  be  raised 
by  any  one  but  an  adverse  party.  No 
stranger  or  a  volunteer  has  a  right  to  ob- 
ject. There  must,  in  every  instance,  he 
a  suit  between  two  or  more  parties,  one 
of  whohi  offers  the  person  in  question,  as 
a  competent  witness.  The  presumption 
of  law,  that  every  citizen  is  a  believer  in 
the  common  religion  of  the  country,  holds 
good  until  it  is  disproved  ;  and  it  would  be 
contrary  to  all  rule  to  allow  any  one,  not 
party  to  the  suit,  to  thrust  in  his  objec- 
tions to  the  course  pm-sued  by  the  liti- 
gants. This  rule  and  uniform  course  of 
proceeding  shows  how  much  of  the  mor- 
bid .sympathy  expressed  for  the  atheist  is 
wasted.  For  there  is  nothing  to  prevent 
him  from  taking  any  oath  of  office ;  nor 
from  swearing  to  a  complaint  before  a 
magistrate ;  nor  from  making  oath  to 
his  answer  in  chancery.  In  this  last 
case,  indeed,  he  could  not  be  objected 
to,  for  another  reason,  namely,  that  the 
plaintiff,  in  his  bill,  requests  the  court 
to  require  him  to  answer  upon  his  oath. 
In  all  these,  and  many  other  similar 
cases,  there  is  no  person  authorized  to 
raise  an  objection.  Neither  is  the  ques- 
tion i^ermitted  to  be  raised  against  the 
atheist,  where  he  himself  is  the  adverse 
party,  and  offijrs  his  own  oath,  in  the 
ordinary  course  of  proceeding.  If  he 
would  make  affidavit,  in  his  own  cause, 
to  the  absence  of  a  witness,  or  to  hold  to 
bail,  or  to  the  truth  of  a  plea  in  abatement, 
or  to  the  loss  of  a  jtaper,  or  to  the  genuine- 
ness of  his  books  of  account,  or  to  his  fears 
of  bodily  harm  from  one  against  whom  he 
requests  siu-ety  of  the  jjcace,  or  would 
take  the  poor  debtor's  oath  ;  in  these  and 
the  like  cases  the  uniform  course  is  to  re- 
ceive his  oath  like  any  other  person's. 
The  law,  in  such  cases,  does  not  know 
that  he  is  an  atheist;  that  is,  it  never  al- 
lows the  objection  of  infiilelity  to  be  made 
against  any  man,  seeking  his  own  rights 
in  a  court  of  justice;  and  it  conclusively 


CHAP.  II.]  COMPETENCY   OF   WITNESSES.  419 

§  371.  It  may  be  added,  in  this  pl^cc,  that  all  witnesses  are  to 
be  sworn  according  to  tha  pecnliar  ceremonies  of  their  own  reli- 
gion, or  in  snch  manner  as  they  may  d(3cm  Itinding  on  their  own 
consciences.  If  the  witness  is  not  of  the  Christian  religion,  the 
conrt  will  inqnire  as  to  the  form  in  wliich  an  oath  is  administered 
in  his  own  country,  or  among  those  of  his  own  faith,  and  will 
impose  it  in  that  form.  And  if,  being  a  Christian,  he  has  con- 
scientious scru})lcs  against  taking  an  oath  in  the  usual  form,  he 
will  bo  allowed  to  make  a  solemn  religious  asseveration,  involving 
a  like  appeal  to  God  for  the  truth  of  his  testimony,  in  any  mode 
which  he  shall  declare  to  be  binding  on  his  conscience.^  The 
court,  in  ascertaining  whether  the  form  in  which  the  oath  is 
administered  is  binding  on  the  conscience  of  the  witness,  may 
inquire  of  the  witness  himself;  and  the  proper  time  for  makmg 
this  inquiry  is  before  he  is  sworn.^  But  if  the  witness,  without 
making  any  objection,  takes  the  oath  in  the  usual  form,  he  may 
be  afterwards  asked,  whether  he  thinks  the  oath  binding  on  his 
conscience ;  but  it  is  unnecessary  and  irrelevant  to  ask  him,  if  he 
considers  any  other  form  of  oath  more  binding,  and  therefore 
sucli  (question  cannot  be  asked.'^  If  a  witness,  without  objectingJ 
is  sworn  in  the  usual  mode,  ])ut  being  of  a  different  faith,  the  oath 
was  not  in  a  form  affecting  his  conscience,  as  if,  being  a  Jew,  he 
Avas  sworn  on  the  Gosj)els,  he  is  still  punishable  for  perjury,  if] 
he  swears  falsely.'^ 

and  absolutely  presumes  that,  so  far  as  re-  severatio  religiosa,  satis  patct  jusjurarnlum 

ligious  belief  is  concerned,  all  persons  are  atteni])erandum  esse  cujusque  reli^ioni." 

capable   of  an  oath,  of  whom   it  requires  Heinec.    ad    Tand.    pars    3,    §§     13,    15. 

one,  as  the  condition  of  its  protection,  or  its  "  Quodcunque    nonien  dederis,  id  utique 

aiil;  probably  deeniin>,Mt  a  less  evil,  that  constat,  onine  jusjurandum   proficisci  ex 

the  soleninity  of  an  oath  should,  in  few  tide  et  persuasione   jurantis ;    et    inutile 

instances,  be  mocked  by  those  who  feel  esse,  nisi  quis  credat  Deuni,  quern  testem 

not  its  force  and  meanintr,  than  that  a  citi-  advocat,  perjurii  sui  idoneum  esse  vendi- 

zen  should,  in  any  case,  be  deprived  of  the  cem.    Id  auteni  credat,  qui  jurat  per  Deum 

benefit  and  protection  of  the  law,  on  the  suum,  per  sacra  sua,  et  ex  sua  ipsius  animi 

ficrouiid  of  his  reii.uious  belief     The  state  reliyione,"  &c.     Bynkers.  Ubs.  Jur.  Kom. 

of  his  faith  is  not  inquired  into,  where  his  lib.  G,  cap.  '2. 

own  rif,dits  are  concerned.  He  is  only  -  By  Stat.  1  &  2  Vict.  c.  105,  an  oath 
I)revented  from  beinj;'  made  the  instru-  is  bindinji',  in  whatever  form,  if  adminis- 
nient  of  takini;-  away  those  of  others."  1  tered  in  such  form  and  with  such  cere- 
Law  Reporter,  pp.  1517,  348.  monies  as  the  person  jnay  declare  binding. 
1  Omichund  r.  Barker,!  Atk.  21,  4G;  But  Uie  doctrine  itself  is  conceived  to  be 
Willes,  538,  545-54'.»,  s.  c. ;    Kamkissen-  common  law. 

seat   v.  Barker,   1  Atk.  lU  ;  Atclieson  v.  '^  The  Queen's  case,  2  B.  &  B.  284. 

EveriU,  Cowp.  38'J,  3'JO;  Bull.  N.  P.  292;  *  Sells  v.  Hoare,  3  B.  &  B.  232;  The 

1  Phil.  Evid.  9,  10,  11 ;  1  Stark.  Evid.  22,  State  r.  Whisoidmrst,  2  Hawks,  458.    But 

23;  Hex  r.  Mortjan,  1  Leach,  Cr.  Cas.  64;  the  adverse  jjarty  cannot,  for  that  cau.se. 

Vail  r.  Nickerson,  (J  Mass.  2(52;  Edmonds  have  a  new  trial.     Whether  he  may,  if  a 

r.  Kowe,  Hy.  &  ^I.  77 ;  Commonwealth  r.  witness  on  the  otiier  side  testitied  without 

Buzzell,  10  rick.  153.     "  Quumquc  sit  ad-  having  been  sworn  at  all,  qiucre.     If  the 


420  LAW   OF   EVIDENCE.  [PART   III. 

§  372.  Under  this  general  V^ad  of  exclusion  because  of  insensi- 
bility to  the  obligation  of  an  oath,  may  be  ranked  the  case  of 
jjersojis  infamous ;  that  is,  persons  who,  whatever  may  be  their 
professed  belief,"  have  l>ccn  guilty  of  those  heinous  crimes  which 
men  generally  are  not  found  to  commit,  unless  when  so  depraved 
as  to  be  unworthy  of  credit  f(n-  truth.  The  basis  of  the  rule  seems 
to  1)0,  that  such  a  person  is  morally  too  corrupt  to  be  trusted  to 
testify ;  so  reckless  of  the  distinction  between  truth  and  falsehood, 
and  insensible  to  the  restraining  force  of  an  oath,  as  to  render  it 
extremely  improbable  that  he  will  speak  the  truth  at  all.  Of  such 
a  person  Chief  Baron  Gilbert  remarks,  that  the  credit  of  his  oath 
is  overbalanced  by  the  stain  of  his  iniquity.^  The  party,  however, 
must  have  been  legally  adjudged  guilty  of  the  crime.  If  he  is 
stigmatized  by  public  fame  only,  and  not  by  the  censure  of  law,  it 
affects  the  credit  of  his"  testimony,  but  not  his  admissibility  as 
a  witness.^  The  record,  therefore,  is  required  as  the  sole  evidence 
of  his  guilt ;  no  other  proof  being  admitted  of  tlie  crime  ;  not  only 
because  of  the  gross  injustice  of  trying  the  guilt  of  a  third  person 
in  a  case  to  which  he  is  not  a  party,  but  also,  lest,  in  the  multipli- 
cation of  the  issues  to  be  tried,  the  principal  case  should  be  lost 
sight  of,  and  the  administration  of  .justice  should  be  frustrated.-'^ 

§  373.  It  is  a  point  of  no  small  difficulty  to  determine  precisely 
the  crimes  which  render  the  perpetrator  thus  infamous.  The  rule 
is  justly  stated  to  require,  that  "  the  puhlicimi  judicium  must  be 
upon  an  offence,  implying  such  a  dereliction  of  moral  principle,  as 
carries  with  it  a  conclusion  of  a  total  disregard  to  the  obligation  of 
an  oath.""^     But  the  difficulty  lies  in  the  specification  of  those 

omission  of  the  oath  was  known  at  tlie  Rev.  Stat.  1846,  ch.  102,  §  99.     And  in 

time,  it   seems   lie  cannot.     Lawrence  v.  Mtissarhnsr-tt.';.     Gen.  Stat.,  ch.  131,  §  13. 

Ilou^'hton,  5  Johns.  12U;  White  w.  ILiwn,  Anil   in   Imvn.     Code  of  1851,  art.  'iSSS. 

l<1.3yl.    But  if  it  was  not  discovered  imtil  In  Flurtda,   a  conviction  of  iicrjury  is   a 

after  the  trial,  he  may.     Ilawks  r.  Jiaker,  perpetual  obstacle  to   the   competency  of 

6  Greenl.  I'l.     [As  to  the  mode  of  admin-  the  party  as   a   witness,   notwithstanding 

isterina:  the  oath  to  deaf  and  dumb  i)er-  he  may  have  been  i)ardoned  or  jninished. 

sons,  see  xupm,  §  3tJG.|  I5ut  convictions  for  other  crimes  go  only 

1  1    (lilb.    Evid.   by  Lofft,  p.  2o0.     It  to    the  credibility,  except  tlie  crimes  of 

was  formerly  tlioutilit,  that  an  infamous  murder,  perjury,  piracy,  forgery,  larceny, 

piinisiiincnt,  for  whatever  crime,  rendered  robliery,  arson,  sodoni}',  or  buggery.     Con- 

the  person  incompetent  as  a  witness,  by  victions  for  any  crime  in  anotlier  state,  go 

reason  of  infamy.     Hut  this  notion  is  ex-  to  the  credibility  only.      Thompson's  Dig. 

])loded  ;  and  it  is  now  settleil  tiiat  it  is  Uie  jip.  334,  335. 

crime  and  not  the  jmnislinR'nt  that  ren-  ■^  2  Dods.  R.  186,  per  Sir  Wm.  Scott, 

ders  the  man  infamous.     Bull.  N.  V.  2'.»2;  ^  Rex  v.  Castel  Careinion,  8  East,  77; 

Pendock   r.  Mackinder,  Willes,    R.    (i60.  Lee  ?'.  Gansell,  Cowp.  3,  per  Lord  Mans- 

In    C'onnpcticiit,  'the  infamy  of  the  witness  field. 

goes   now  only  to  his  credibility.     Hev.  ^  2  Dods.  R.  186,  per  Sir  Wm.  Scott. 

Stat.  181'J,  tit."l,  §  141.     So  in  Michijun.  . 


CHAP.  II.]  COMPETENCY.  OF   WITNESSES.  421 

ofTojiccs.  The  usual  and  more  general  enumeration  is,  freascm, 
felony,  and  the  crimen  falsi}  In  regard  to  the  two  former,  as  all 
treasons,  and  almost  all  felonies  were  punishable  with  death,  it 
was  very  natural  that  crimes,  deemed  of  so  grave  a  character  as  to 
render  the  offender  unworthy  to  live,  should  be  considered  as 
rendering  him  unworthy  of  belief  in  a  court  of  justice.  But  the 
extent  and  meaning  of  the  term  crimen  falsi,  in  our  law,  is  nowhere 
laid  down  with  precision.  In  the  Roman  law,  from  which  we  have 
borrowed  the  term,  it  included  not  only  forgery,  but  every  species 
of  fraud  and  deceit.^  If  the  ofTence  did  not  fall  under  any  other 
head,  it  was  called  stellionatus,^  which  included  "  all  kinds  of 
cozenage  and  knavish  practice  in  bargaining."  But  it  is  clear, 
that  the  common  law  has  not  employed  the  term  in  tliis  extensive 
sense,  when  applying  it  to  the  disqualification  of  witnesses  ; 
because  convictions  for  many  offences,  clearly  belonging  to  the 
crimen  falsi  of  the  civilians,  have  not  this  effect.  Of  this  sort  are 
deceits  in  the  quality  of  provisions,  deceits  by  false  weights  and 
measures,  conspiracy  to  defraud  by  spreading  false  news,"*  and 
several  others.  On  the  other  hand,  it  has  been  adjudged  that 
persons  arc  rendered  infamous,  and  therefore  incompetent  to  tes- 

1  Pliil.  &  Am.  on  Evid.  p.  17 ;  6  Com.  teste  recipiendus  est;   nee  ejus   liaeredes 

Dig.  :lo8,  Testnwit/Dc,  A.  4:,  o  ;  Co.  Lit.  G,  nee  parlicipes  querela.     Etlioc  intelligen- 

b;  2  Hale,  P.  C.  277 ;  1  Stark.  Evid.  94,  diim  est  tarn  ex  parte  actoris,  quani  ex 

95.     A   conviction  for  petty  larceny  dis-  parte  defensoris.     Omnes  auteni  illi,  qui 

qualifies,   as   well   as   for   grand  larceny,  perjitn'o  ^.ai  lasione  Jichi  sunt  iut'nmes,  i)b 

I'ondock  t".  Mackinder,  Willes,  R.  005.  .  hoc  etiain  sunt  repellendi,  et  omnes  illi, 

-  Cod.  lib.  y,  tit.  22,  ad  legem  Corne-  qui   in   bello   succubuerunt."     Jura   Nor- 

liam  de  falsis.      Cujac.     Opera,  torn.  ix.  niania>,  cap.  02;  [in  Le  tiraiid  Coustumier, 

in  locum.    (Ed.  Prati,  A.  D.  1839',  4to,  pp.  fol.  edit.  1539.]     In   the  ancient  Danish 

2191-2200) ;  1  Brown's  Civ.  &  Adm.  Law,  law  it  is  thus  defined,  in  the  chapter  enti- 

p.  525 ;  Dig.  lib.  48,  tit.  10 ;    lieinec.  in  tied.  Falsi  crimen  quoilmim  ceiis/tur.     "  Fal- 

I'and.   pars  vii.  §   214-218.     The  crimen  sum  est,  si  termininn,finesve  cpiis  movcrit, 

/itlsi,  as  recognized   in  the   Roman   law,  monetam   nisi   veiiia   vel   mandato   regio 

miiiht  be  committed,  1.    By  words,  as  in  cu.^sorit,  argentum  adnlterinum   conflave- 

Iierjury;  —  2.  Hy  writing,  as  in  forgery  ; —  rit,   munmisve    reprobis  dolo    maio    emat 

;!.    By  act  or  deed ;   namely,  in  counter-  vendat(iue,  vel  argento  adulterino."     An- 

fl'iting  or  adulterating  the  jniblic  money,  —  cher,  Lex  Cimbrica,  lib.  3,  cap.  05,  p.  249. 

in    fraudulently   substituting    one     child  ^  ]),„_  ij^.  47^  tit.  20,  1.  3,  Cujac.  (in 

for  another,  or  a  supi)ositiou3  birth,  —  or  locum)    Ojiera,    tom.    ix.    (ed.   supra),  p. 

in  fraudulently  personating  another,  —  in  2224.      Stellionatus    nomine    significatur 

using  false  weights  or  measures,  —  in  sell-  onnie  crimen,  quod  nomen  j)ropriuin  non 

ing  or  mortiiairmg  the  same  thing  to  two  habet,  onmis  fraus,  qua>  ncmiine  proprio 

several  jiersons,  in  two  several  contracts,  racat.      Translatum   autom   esse    nomen 

—  and  in  oflSciously  supporting  the   suit  stellionatus,  nemo  est  qui  nesciat,  ab  ani- 

of  another,  by  money,  &c.,  answering  to  niali  ad  hominem  vafruni,  et  decipiendi 

tlie   common-law   crime   of  maintenance,  j^eritum.     Id.  Ileinec.  ad  Pand.  pars.  vii. 

AVood,  Instit.   Civil    Law,  pp.  282,  283;  «;§  147,  148 ;  1  Brown's  Civ.  &  Adm.  Law, 

Ilalitax,  Analysis  Rom.  Law,  p.  134.    The  p.  420. 

law  of  Normandy  disposed  of  the  whole  *  The  Ville  de  Varsovie,  2  Dods.  R. 

subject  in  the.se"  words :    "  Notandum  si-  174.     But   see   Crowther  v.  Hopwood,  3 

quidem  est,  quod  nemo  in  querela  sua  pro  Stark.  R.  21. 
VOL.  I.                                                36 


422  LAW   OF   EVIDENCE.  [PART   III. 

tify,  Ijy  having  been  convicted  of  forgery,^  perjury,  subornation  of 
perjury,^  suppression  of  testimony  by  bribery,  or  conspiracy  to 
procure  the  absence  of  a  witness,^  or  other  conspiracy,  to  accuse 
one  of  a  crime,^  and  baii'atry.^  And  from  these  decisions,  it  may 
be  deduced,  that  the  crimen  falsi  of  the  common  law  not  only 
involves  the  charge  of  falsehood,  but  also  is  one  which  may  inju- 
riously affect  the  administration  of  justice,  by  the  introduction  of 
falsehood  and  fraud.  At  least  it  may  be  said,  in  i\\Q  language 
of  Sir  William  Scott,^  "  so  far  the  law  has  gone  affirmatively ;  and 
it  is  not  for  me  to  say  where  it  should  stop,  negatively." 

§  374.  In  regard  to  the  extent  and  effect  of  the  disability  thus 
created,  a  distinction  is  to  be  observed  between  cases  in  which  the 
person  disqualified  is  a  party,  and  those  in  which  he  is  not.  In 
cases  between  third  persons,  his  testimony  is  universally  excluded.^ 
But  where  he  is  a  party,  in  order  that  he  may  not  be  wholly  reme- 
diless, he  may  make  any  affidavit  necessary  to  his  exculpation  or 
defence,  or  for  relief  against  an  irregular  judgment,  or  the  like  ;^ 
but  it  is  said  that  his  affidavit  shall  not  be  read  to  support  a  crimi- 
;  nal  charge.'-*  If  he  was  one  of  the  subscribing  witnesses  to  a  deed, 
will,  or  other  instrument,  before  his  conviction,  his  handwriting 
may  be  proved,  as  though  he  were  dead.^<^ 

§  375.  We  have  already  remarked,  that  no  person  is  deemed 
infamous  in  law,  until  lie  has  been  legally  found  guilty  of  an  in- 
famous crime.  But  the  niere  verdict  of  the  jury  is  not  sufficient 
for  this  purpose  ;  for  it  may  be  set  aside,  or  the  judgment  may  be 
arrested,  on  motion  for  that  purpose.  It  is  the  judgment,  and  that 
only,  which  is  received  as  the  legal  and  conclusive  evidence  of  the 

1  Eex  w.  Davis,  5  Mod.  74.  clare   the  perpetrator  of  a  crime  "infa- 

2  Co.  Lit.  6,  b;  6  Com.  Dig.  353,  res/H).  moiis,"  this,  it  seems,  will  render  liim 
A.  5.  incompetent  to  testify.     1  Gilb.  Evid.  by 

8  Clancey's  case,  Fortesc.  R.  208;  Bush-  Lort't,  pp.  256,  257  ;  Co.  Lit.  6,  b. 

ell  V.  Barrett,  Ry.  &  M.  434.  '^  2  Dods.  R.  191.     See  also  2Russ.  on 

*  2  Hale,  P.  C.  277 ;  Hawk.  P.  C.  b.  2,  Crimes,  592,  593. 

ch.  46,  §  101 ;  Co.  Lit.  6,  b ;  Rex  v.  Prid-  "^  Even  where  it  is  merely  offered  as 

die,  2  Leacli,  Cr.  Cas.  496;   Crovvther  v.  an  affidavit  in  showing   cause   against  a 

Hopwood,  3  Stark.  R.  21,  arg.;  1  Stark,  rule  caUing  upon  the  party  to  answer,  it 

Evid.  95;  2  Dods.  R.  191.  will  be  rejected.     In  re  Sawyer,  2  Ad. 

5  Rf  X  t:  Eord,  2  Salk.  690 ;  Bull.  N.  P.  &  El.  721,  n.  s. 

292.     The  receiver  of  stolen  goods  is  in-  ^  Davis  and  Carter's  case,  2  Salk.  461 ; 

competent  as  a  witness.     See  the  Trial  of  Rex  v.  Gardiner,  2  Burr.  1117;  Atcheson 

Abner  Rogers,  pp.   136,   137;  [Common-  v.  Everitt,  Cowp.  382;  Skinner  i'.  Porot, 

wealth  V.  Rogers,  7  Met.  500.     A  person  1  Ashm.  57. 

convicted  of  maliciously  obstructing  the  ^  Walker  v.  Kearney,  2   Stra.    1148; 

])a,-singof  cars  on  a  railroad  is  not  thereby  Rex  v.  Gardiner,  2  Burr.  1117. 

an  incompetent  witness.     Commonwealth  ^"  Joues  v.  Mason,  2  Stra.  833. 
V.  Dame,  8  Cush.  384.]     If  a  statute  de- 


CHAP.  II.]  COMPETENCY   OF   WITNESSES.  423 

party's  guilt,  for  the  purpose  of  rcndcriug  liim  incompetent  to 
testify. 1  And  it  must  a})pcar  that  the  Judgment  was  rendered  by 
a  e(jurt  of  competent  jurisdiction.^  Jiulgmcnt  of  outlawry,  for 
treason  or  felony,  will  have  the  same  effect;^  for  the  party,  in  sub- 
mitting to  an  oaitlawry,  virtually  confesses  his  guilt ;  and  so  the 
record  is  equivalent  to  a  judgment  upon  confession.  If  the  guilt 
of  the  party  should  be  shown  by  oral  evidence,  and  even  by  his 
own  admission  (though  in  neither  of  these  modes  can  it  be  proved, 
if  the  evidence  be  objected  to),  or,  by  his  plea  of  "  guilty  "  which 
has  not  been  followed  by  a  judgment,*  the  proof  does  not  go  to  the 
competency  of  the  witness,  however  it  may  affect  his  credil^ility.^ 
And  the  judgment  itself,  when  oflfered  against  his  admissibility, 
can  be  proved  only  by  the  record,  or,  in  proper  cases,  by  an  au- 
thenticated copy,  which  the  objector  must  offer  and  produce  at  the 
time  when  the  witness  is  about  to  be  sworn,  or  at  farthest  in  the 
coiirse  of  the  trial.^ 

§  376.  Whether  judgment  of  an  infamous  crime,  passed  by 
a  foreign  tribunal,  ought  to  be  allowed  to  affect  the  competency  of 
the  party  as  a  witness,  in  the  courts  of  this  country,  is  a  question 
upon  which  jurists  are  not  entirely  agreed.  But  the  weight  of 
modern  opinions  seems  to  be,  that  personal  disqualifications,  not 
arising  from  the  law  of  nature,  but  from  the  positive  law  of  the 
country,  and  especially  such  as  are  of  a  penal  nature,  are  strictly 
territorial,  and  cannot  be  enforced  in  any  country  other  than  that 
in  which  they  originated.'  Accordingly,  it  has  been  held,  upon 
great  consideration,  that  a  conviction  and  sentence  for  a  felony,  in 
one  of  the  United  States,  did  not  render  the  party  incomi)Ctent  as 
a  witness,  in  the  courts  of  another  state  ;  though  it  might  be  shown 
in  diminution  of  the  credit  due  to  his  testimony.^ 

1  6  Com.  Dig.  354,  Tesfm.  A.  5  ;  Hex  Wicks  v.  Smalbrook,  1  Sid.  51 ;  T.  Ray. 

V.  Castel  Careinion,  8  East,  77  ;  Lee  v.  82,   s.   c. ;    The   People    v.   Ilerrick,  13 

Gansell,  Cowp.  3 ;  Bull.  N.  P.  2Vt2  ;  Fitch  Johns.  82. 

V.   Smalbrook,   T.  Kay.  32;    The  Pcoi)le  «  Id.   Hilts  v.   Colven,  14  Johns.  182; 

?•.  Wliii)ple,  U  Cowen,  707  ;  The  Peoi)le  r.  Commonwealth   r.   Green,  17  Mass.   537. 

Ilerrick,  13  Johns.  82 ;  Cushman  v.  Lnker,  In  The  State  t-.  llidgely,  2  Har.  &  Mellen. 

2  .Mass.  108;  Castellano  v.  Peillon,  2  iMar-  120,  and  Clark's  Lessee  v.  Hall,  Id.  378, 

tin,  N.  s.  466.  wiiich  have  been  cited  to  the   contrary, 

-  Cooke  V.  Maxwell,  2  Stark.  R.  183.  parol  evidence  was  admitted  to  jm-ovc  only 

^  Co.   Lit.  6,  b;  Hawk.  P.  C.  b.  2,  eh.  the  tact  of  the  witness's  having  been  trans- 

48,  §  22  ;  3  Inst.  212;  6  Com.  Dig.  354,  ported  as  a  convict ;  not  to  prove  the  judg- 

Tcslm.  A.  5;  1  Stark.  Evid.  95,%.     In  ment  of  conviction. 

Scotland   it  is   otherwise.      Tait's   Evid.  "  Story  on  Confl.  of  Laws,  §§  91,  92, 

p.  347.  104,  620-^625 ;  Martens,  Law  of  Nations, 

*  Kegina  r.  Ilincks,  1  Dennis.  Cr.  Cas.  b.  3,  ch.  3,  §§  24,  25. 

84.  **  Commonwealth   r.   Green,  17  Mass. 

&  Rex  V.  Castel  Careiuion,  8  East,  77 ;  515,  539-549,  per  totam  Ciuiam ;  contra, 


424  LAW   OF  EVIDENCE.  [PART  III. 

§  377.  The  disabiUti/  thus  arising  fl-om  infamy  may,  in  general, 
be  removed  in  two  modes:  (1.)  ))y  reversal  of  the  judgment;  and 
(2.)  by  a  pardon.  The  reversal  of  the  judgment  must  be  shown 
in  the  same  manner  that  the  judgment  itself  must  have  been 
proved,  namely,  by  production  of  tlie  record  of  reversal,  or,  in 
proper  cases,  by  a  duly  authenticated  exemplification  of  it.  The 
pardon  must  be  proved,  by  production  of  the  charter  of  pardon, 
under  the  great  seal.  And  though  it  were  granted  after  the 
prisoner  had  suffered  the  entire  punishment  awarded  against  him, 
yet  it  has  been  held  sufficient  to  restore  the  competency  of  the 
witness,  though  he  would,  in  such  case,  be  entitled  to  very  little 
credit.^ 

§  378.  The  rule,  that  a  pardon  restores  the  competency  and 
completely  rehabilitates  the  party,  is  limited  to  cases  where  the 
disability  is  a  consequence  of  the  judgment,  according  to  the  prin- 
ciples of  the  common  law.^  But  where  the  disability  is  annexed 
to  the  conviction  of  a  crime  by  the  express  words  of  a  statute,  it 
is  generally  agreed  that  the  pardon  will  not,  in  such  a  case, 
restore  the  competency  of  the  offender ;  the  prerogative  of  the 
sovereign  being  controlled  by  the  authority  of  the  express  law. 
Thus,  if  a  man  be  adjudged  guilty  on  an  indictment  for  perjury, 
at  common  law,  a  pardon  will  restore  his  competency.  But  if 
the  indictment  be  founded  on  the  statute  of  5  Eliz.  c.  9,  which 
declares,  that  no  person,  convicted  and  attainted  of  perjury,  or 
subornation   of  perjury,   shall    be   from    thereforth    received    as 


The  State  v.  Candler,  3  Hawks,  393,  per  qiialification  to  testify.  And  the  same 
Taylor,  C.  J.,  and  Henderson,  J. ;  Hall,  J.,  effect  is  given  by  §  4,  of  the  same  statute, 
dubitante,  hut  inclinins;  in  favor  of  admit-  to  the  endurance  of  the  punishment  award- 
ting  the  witness.  In  the  cases  of  The  ed  for  any  misdemeanor,  except  perjuiy 
State  V.  Ilidgely,  2  Har.  &  McHen.  120;  and  subornation  of  perjfiry.  See  also  1 
Clark's  Lessee  v.  Hall,  Id.  378  ;  and  Cole's  W.  IV.,  c.  37,  to  tlie  same  effect;  Tait  on 
Lessee  v.  Cole,  1  Har.  &  Johns.  572 ;  Evid.  pp.  34(),  347.  Hut  whctlier  these 
which  are  sometimes  cited  in  the  negative,  enactments  have  proceeded  on  the  ground, 
this  point  was  not  raised  nor  considered ;  that  the  incompetency  is  in  tlie  nature  of 
they  being  cases  of  persons  sentenced  in  punishment,  or,  that  the  offender  is  re- 
England  for  felony,  and  transported  to  formed  by  the  salutary  discipline  he  has 
Maryland,  under  the  sentence  prior  to  the  undergone,  does  not  clearly  appear. 
Revolution.  -  If  the  pardon  of  one  sentenced  to  the 
1  The  United  States  v.  Jones,  2  Wheel-  penitentiary  for  life  contains  a  proviso, 
er's  Cr.  Cas.  451,  per  Thompson,  J.  By  that  nothing  therein  contained  shall  be 
Stat.  9  Geo.  IV.,  c.  32,  §  3,  emluring  the  construed,  so  as  to  relieve  the  party  from 
punishment  to  which  an  offcMider  has  been  the  legal  disabilities  consequent  upon  his 
sentenced  for  any  felony  not  punishable  sentence,  other  than  the  imprisonment, 
Avith  doatii  has  the  same  effect  as  a  par-  the  ])roviso  is  void,  and  tlie  party  is  fully 
don  mider  the  great  m'al,  for  the  same  of-  rehabilitated.  The  People  v.  Pease,  3 
fence;  and  of  coiu-se  it  removes  the  dis-  Johns.  Cas.  333. 


CHAP.  II.] 


COMPETENCY   OF   WITNESSES. 


425 


a  witness  in  any  court  of  record,  he  will  not  he  rendered  compe- 
tent l)y  a  ])ardon.^ 

§  370.  The  case  of  accomplices  is  usually  mentioned  under  the 
head  of  infamy ;  but  we  propose  to  treat  it  more  ai)propriately, 
when  we  come  to  speak  of  persons  disqualified  by  interest,  since 
accomplices  generally  testify  under  a  promise  or  expectation  of 
pardon,  or  some  other  benefit.     But  it  may  here  be  observed,  that 


1  TJex  V.  Ford,  2  Salk.  689 ;  Dover  v. 
Macstaer,  5  Esp.  92,  94 ;  2  liuss.  on 
CriiiK's,  595,  590 ;  Eex  v.  Greepe,  2  Salk. 
513,  514;  Bull.  N.  P.  292;  Phil.  &  Am. 
on  Evid.  21,  22.  See  also  Mr.  Ilargrave's 
Juridical  Arguments,  vol.  2,  p.  221  et  seq., 
where  tiiis  to])ic  is  treated  with  great 
ability.  Whether  the  disability  is,  or  is 
not,  made  a  ])art  of  tlie  judgment,  and  en- 
tered as  such  on  the  reconl,  does  not 
seem  to  be  of  any  importance.  The  form 
in  which  this  distinction  is  taken  in  the 
earlier  oases  evidently  shows  that  its 
force  was  understood  to  consist  in  this, 
that  in  tiie  former  case  the  disability  was 
declared  by  the  statute,  and  in  the  latter, 
that  it  stooil  at  common  law.  "  Although 
the  incapacity  to  testify,  especially  con- 
sidered as  a  mark  of  infamy,  may  really 
operate  as  a  severe  punishment  upon  the 
party  ;  yet  there  are  other  considerations 
affecting  other  persons,  which  may  well 
warrant  his  exclusion  from  the  halls  of 
justice.  It  is  not  consistent  with  the  in- 
terests of  others,  nor  with  the  protection 
which  is  due  to  them  from  the  state,  that 
they  should  be  exposed  to  the  peril  of  tes- 
timony from  persons  regardless  of  the 
obligation  of  an  oath ;  and  hence,  on 
grounds  of  i)ublic  policy,  the  legislature 
may  well  require,  thatwliile  the  judgment 
itself  remains  unreversed,  tlie  party  con- 
victed shall  not  be  heard  as  a  witness.  It 
may  be  more  safe  to  exclude  in  all  cases, 
than  to  admit  in  all,  or  attempt  to  distin- 
guish by  investigating  the  grounds  on 
wliich  the  pardon  ma}'  iiave  been  granted. 
And  it  is  witiiout  doubt  as  clearly  within 
the  power  of  the  legislature,  to  modity  tlie 
law  of  evidence,  by  declaring  what  man- 
ner of  persons  shall  be  competent  to  tes- 
tify, as  by  enacting,  as  in  the  statute  of 
frauds,  tiiat  no  {)erson  shall  be  heard  vird 
voce  in  proof  of  a  certain  class  of  contracts. 
The  statute  of  Elizabeth  itself  seems  to 
place  the  exception  on  tlie  ground  of  a 
rule  of  evidence,  and  not  on  that  of  a  jienal 
fuhnination  against  the  otU'uder.  The  in- 
tent of  tiie  legislature  appears  to  have 
been  not  so  much  to  punish  the  part}',  by 
depriving  him  of  the  privilege  of  being  a 
witness   or  a  juror,   as   to   prohibit    the 


conrts  from  receiving  the  oath  of  any  per- 
son convicteil  of  disregarding  its  obliga- 
tion. And  whether  this  consequence  of 
the  conviction  be  entered  on  the  record  or 
not,  the  effect  is  the  same.  The  judg- 
ment under  the  statute  being  properly 
shown  to  the  judges  of  a  court  of  justice, 
their  duty  is  declared  in  the  statute,  inde- 
pendent of  the  insertion  of  the  inliibition 
as  part  of  the  sentence,  and  unafli?cted  by 
any  subsequent  pardon.  The  legislature, 
in  the  exercise  of  its  power  to  punish 
crime,  awards  fine,  imprisonment,  and  tlie 
pillory  against  the  offender ;  in  the  dis- 
charge of  its  duty  to  preserve  the  temple 
of  justice  from  pollution,  it  repels  from  its 
portal  the  man  who  feareth  not  an  oath. 
Thus  it  appears,  that  a  man  convicted  of 
perjury  cannot  be  sworn  in  a  court  of  jus- 
tice, while  the  judgment  remains  unre- 
versed, though  his  ofl'ence  may  have  been 
pardoned  after  the  judgment;  but  the  rea- 
son is  found  in  the  express  dii-ection  of  the 
statutes  to  the  courts,  and  not  in  the  cir- 
cumstances of  the  disability  being  made  a 
part  of  the  judgment.  The  pardon  exerts 
its  full  vigor  on  the  offender ;  but  is  not 
allowed  to  ojierate  beyond  this,  upon  the 
rule  of  evidence  enacted  by  tlie  statute. 
The  punishment  of  the  crime  belongs  to 
the  criminal  code  ;  the  rule  of  evidence  to 
the  civil."  See  Amer.  Jur.  vol.  11,  pp. 
SBO,  301.  362.  In  several  of  the  United 
States,  the  disqualification  is  expressly 
declared  liy  statutes,  and  is  extended  to 
all  the  crimes  therein  enumerated  ;  com- 
prehending not  only  all  the  varieties  of  the 
crimen  falsi,  as  understood  in  the  common 
law,  but  divers  other  offences.  In  some 
of  the  states,  it  is  expressly  enacted,  that 
the  pardon  of  one  convicted  of  perjury 
siiall  not  restore  his  competency  as  a  wit- 
ness. See  Viri/inla,  Rev.  Stat.  1849,  ch. 
199,  §  19 ;  Florida,  Thom])son's  Dig.  p. 
334;  Gconjia,  Hotchkiss's  Dig.  p.  730. 
But  in  Ohio,  competency  is  restored  by 
pardon.  Kev.  Stat.  1841,  chap.  35,  §  41. 
In  (iiori/iii,  convicts  in  the  penitentiary 
are  competent  to  jirove  an  escape,  or  a 
mutiny.  Hotchk.  Dig.  sn/ira.  And  see 
N<w  Jrrsry,  Kev.  Stat.  1846,  tit.  8,  ch.  1, 
§  23 ;  Id.  tit.  34,  ch.  9,  §  1. 


36* 


426  LAW    OF    EVIDENCE.  [PAET    III. 

lit  is  a  settled  rule  of  evidence,  that  a  2J<^rticeps  criminis,  notwith- 

!  standing  the  turpitude  of  his  conduct,  is  not,  on  that  account,  an 
incompetent  witness,  so  long  as  he  remains  not  convicted  and 
sentenced  for  an  infamous  crime.  The  admission  of  accom- 
plices, as  witnesses  for  tlie  government,  is  justified  by  the  neces- 
sity of  the  case,  it  being  often  impossible  to  bring  the  principal  • 

I  offenders  to  justice  without  them.  The  usual  course  is,  to  leave 
out  of  the  indictment  those  who  are  to  be  called  as  witnesses ; 

'but  it  makes  no  difference  as  to  the  admissibility  of  an  accom- 
plice, whether  he  is  indicted  or  not,  if  he  has  not  been  put  on  his 

..  trial  at  the  same  time  with  his  companions  in  crime.^  He  is  also 
a  competent  witness 'in  their  favor ;  and  if  he  is  put  on  his  trial 
at  the  same  time  with  them,  and  there  is  only  very  slight  evidence, 
if  any  at  all,  against  him,. the  court  may,  as  we  have  already  seen,^ 
and  generally  will  forthwith  direct  a  separate  verdict  as  to  him, 
and,  upon  his  acquittal,  will  admit  him  as  a  witness  for  the  others. 
If  he  is  convicted,  and  the  punishment  is  by  fine  only,  he  will  be 

[  admitted  for  the  others,  if  he  has  paid  the  "fiiieT^  But  whether  an 
accomplice  already  charged  with  the  crime,  by  indictment,  shall 
be  admitted  as  a  witness  for  the  government,  or  not,  is  determined 
by  the  judges,  in  their  discretion,  as  may  best  serve  the  purpose 
of  justice.  If  he  appears  to  have  been  the  principal  offender,  he 
will  be  rejected.^  And  if  an  accomplice,  having  made  a  private 
confession,  upon  a  promise  of  pardon  made  by  the  attorney-general, 
should  afterwards  refuse  to  testify,  he  may  be  convicted  upon  the 
evidence  of  that  confession.^ 

§  380.  The  degree  of  credit  which  ought  to  be  given  to  the  testi- 
mony of  an  accomplice  is  a  matter  exclusively  within  the  province 
of  the  jury.  It  has  somctunes  been  said,  that  they  ought  not  to 
believe  him,  unless  his  testimony  is  corroborated  by  other  evi- 
dence ;  and,  without  doubt,  great  caution  in  weighing  such  testi- 
mony is  dictated  by  prudence  and  good  reason.     But  there  is  no 

1  See  Jones  v.  Georgia,  1  Kelly,  GIO.  case  of  a  party  seeking  relief.     See  infrn, 

2  ^upra  §  3G2.                      ^  §  083,  note.     See  also  2  Stark.  Evid.  9, 

3  2  Russ.  on  Crimes,  597,  600 ;  Rex  v.  lo ;  2  Hale,  P.  C.  280 ;  7  T.  R.  611 ;  Mus- 
Westbeer,  1  Leach,  Cr.  Cas.  14 ;  Ciiar-  son  v.  Fales,  16  Mass.  33.5 ;  Churcliill  v. 
nock's  case,  4  St.  Tr.  582  (edit.  1730) ;  Suter,  2  Mass.  162 ;  Townsond  v.  Bush, 
12  Howell's  St.  Tr.  1454,  s.  c.  ;  Rex  v.  1  Conn.  267,  per  Trumbull,  J. 
Fletcher,  1  Stra.  633.  The  rule  of  the  Ro-  ■*  The  People  v.  Whipple,  9  Cowen, 
man  law,  Nemo,  allcf/dns  tiiriiitiuUnnin  siKtm,  707  ;    supra,  §  363. 

est  audiendas,  thougli  formerly  api)lied  to  ^  Commonwealth  v.   Knapp,   10  Pick, 

witnesses,  is  now  to  tliat  e.vtent  exploded.     477 ;  Rex  v.  Burley,  2  Stark.  Evid.  12, 
It  can  only  be  applied,  at  this  day,  to  the     note  (rj. 


CHAP.  II.] 


COMPETENCY   OF   WITNESSES. 


427 


such  rule  of  law ;  it  being  expressly  conceded  that  the  jury  may, 
iC  they  please,  act  upon  the  evidence  of  the  accomplice,  without 
any  conlirmation  of"  his  statement.^  But,  on  tlie  other  hand, 
judges,  in  their  discretion,  will  advise  a  jury  not  to  convict  of 
felony  upon  the  testimony  of  an  accomplice  aluiiCj  and  without 
corroljQj^tjonj  ^^^^  it  ^s  now  so  generally  the  practice  to  give 
them  such  advice,  that  its  omission  would  be  regarded  as  an 
omission  of  duty  on  the  part  of  the  judgc.^  And,  considering  the 
res})ect  always  paid  by  the  jury  to  this  advice  from  the  bench,  it 
may  be  regarded  as  the  settled  course  of  practice,  not  to  convict 
a  prisoner  in  any  case  of  felony,  upon  the  sole  and  uncorroborated 
testimony  of  an  accomplice.  The  judges  do  not,  in  such  cases, 
withdraw  the  cause  from  the  jury  by  positive  directions  to  acquit, 
but  only  advise  them  not  to  give  credit  to  the  testimony. 

§  381.  But  though  it  is  thus  the  settled  practice,  in  cases  of 
felony,  to  require  other  evidence  in  corroboration  of  that  of  an 
accomplice ;  yet,  in  regard  to  the  manner  and  extent  of  the  corrobo- 
ration to  be  required,  learned  judges  are  not  perfectly  agreed. 
Some  have  deemed  it  sufficient,  if  the  witness  is  confirmed  in  any 
material  part  of  the  case ;  ^  others  have  required  confirmatory  evi- 


1  IJex  V.  Hastings,  7  C.  &  P.  152,  per 
L(l.  Deninan,  C.  J. ;  Rex  v.  Jones,  2 
Canipb.  132,  per  Ld.  Ellenborough ;  ol 
Howell's  St.  Tr.  315,  s.  c. ;  Kex  v.  At- 
wood,  2  Leacli,  Cr.  Cas.  521 ;  Kex  v.  Dm-- 
hara,  Id.  528;  Kex  ;•.  Uawber,  3  8tark.  K. 
34;  Rex  (-•.  Barnard.  1  C.  &  P.  87,  88; 
The  People  v.  Costello,  1  Denio  (X.  Y.) 
11.  83. 

^  Roscoe's  Crini.  Evid.  p.  120;  2  Stark. 
Evid.  12;  Rex  v.  Barnard,  1  C.  &  P.  87. 
Eur  the  limitation  of  this  practice  to  cases 
of  telony,  see  Re.v  v.  Jones,  31  Howell's 
St.  Tr.  315,  per  (jibbs,  Attor.-Gen.,  arg. 
See  also  Rex  v.  Hargrave,  5  C.  &  P.  170, 
where  i)ersons  present  at  a  fight,  which 
resulted  in  manslaughter,  though  princi- 
pals in  the  second  degree,  were  held  not 
to  be  such  accomjilices  as  required  cor- 
roboration, when  testityingas  witnesses. 

^  This  is  the  rule  in  Massachusetts, 
where  the  law  was  stated  by  Morton,  J., 
as  follows  :  "1.  It  is  competent  lor  a  jury 
to  convict  on  the  testimony  of  an  accom- 
plice alone.  The  principle  which  allows 
the  evidence  to  go  to  the  jury,  necessarily 
involves  in  it  a  power  in  them  to  believe 
it.  The  defenilant  has  a  rigiit  to  have  the 
jury  decide  upon  the  evidence  which  may 
be  otleretl  against  him  ;  and  their  duty  will 
re(iuire   of  them  to   return  a  verdict   of 


guilty  or  not  guilty,  according  to  the  con- 
viction wluch  that  evidence  shall  produce 
in  their  minds.  2  Hawk.  P.  C.  ch.  4G,  § 
135;  1  Hale,  P.  C.  304,  305;  Roscoe's 
Crim.  Ev.  119;  1  Phil.  Ev.  32;  2  Stark. 
Ev.  18,  20.  2.  But  the  source  of  this  evi- 
dence is  so  corrupt,  that  it  is  always 
looked  upon  with  suspicion  and  jealousy, 
and  is  deemed  unsafe  to  rely  upon  without 
confirmation.  Hence  the  court  ever  con- 
sider it  their  duty  to  advise  a  jury  to  ac- 
quit, where  there  is  no  evidence  other 
than  the  uncorroborated  testimony  of  an 
accomjdice.  1  Phil.  Evid.  34 ;  2  Stark. 
Evid.  24;  Rex  v.  Durham,  2  Leach,  528; 
Rex  i\  Jones,  2  Campb.  132 ;  1  Wheeler's 
Crim.  Cas.  418;  2  Rogers's  Recorder,  38; 
5  Ibid.  95.  3.  The  mode  of  corroboration 
seems  to  be  less  certain.  It  is  perfectly 
clear,  that  it  need  not  extend  to  the  whole 
testimony ;  but  it  being  shown  that  the 
accoujplice  has  testified  truly  in  some  par- 
ticulars, the  jury  may  infer  that  he  has  in 
others.  But  what  amounts  to  corrobora- 
tion ?  We  think  the  rule  is,  that  the  cor- 
roborative evidence  nuist  relate  to  some 
portion  of  the  testimony  which  is  material 
to  the  issue.  To  prove  that  an  accomplice 
had  told  the  trutli  in  relation  to  irrele- 
vant ami  immaterial  nuitters,  which  were 
known  to  everybody,  would  have  no  tend- 


428 


LAW    OF   EVIDENCE. 


[part   III. 


deiicc  as  to  the  corpus  delicti  only  ;  and  others  have  thought  it 
essential,  that  there  should  he  corroborating  proof  that  the  prisoner 
actually  participated  in  the  offence ;  and  that,  when  several  pris- 
oners are  to  be  tried,  confirmation  is  to  be  required  as  to  all  of 
them,  before  all  can  be  safely  convicted ;  the  confirmation  of  the 
witness,  as  to  the  commission  of  the  crime,  being  regarded  as  no 
confirmation  at  all,  as  it  resi)ects  the  prisoner.  For,  in  describing 
the  circumstances  of  the  offence,  he  may  have  no  inducement  to 
speak  falsely,  but  may  have  every  motive  to  declare  the  trutli,  if 
he  intends  to  be  believed,  when  he  afterwards  fixes  the  crime 
upon  the  prisoner .^  If  two  or  more  accomplices  are  produced  as 
witnesses,  they  are  not  deemed  to  corroborate  each  other ;  h^t Jhe 
same  "riire'ls  applied,  and  the  same  confirmation  is  required,  as  if 
there  were  hut  one .2 

§  382.  There  is  one  class  of  persons  apparently  accomplices,  to 
wdiom  the  rule,  requiring  corroborating  evidence,  does  not  apply ; 


ency  to  confirm  his  testimony,  involving 
the  guilt  of  the  party  on  trial.  If  this 
were  the  case,  every  witness,  not  mcom- 
petent  for  tlie  want  of  understanding, 
could  always  furnish  materials  for  the 
corrohoration  of  his  own  testimony.  If 
he  could  state  where  he  was  born,  where 
lie  luul  resided,  in  whose  custody  he  had 
been,  or  in  what  jail,  or  what  room  in  the 
jail  he  had  l)een  confined,  he  might  easily 
get  confirmation  of  all  these  particulars. 
But  these  circumstances  having  no  neces- 
sary connection  witli  the  guilt  of  the  de- 
feiulant,  the  proof  of  the  correctness  of  tlie 
statement  in  relation  to  tliem  would  not 
conduce  to  prove  that  a  statement  of  the 
guilt  of  the  defendant  was  true.  Koscoe's 
Crim.  Evid.  120 ;  Rex  v.  Addis.  6  Car.  & 
Payne,  o«8."  See  Commonwealth  v.  Bos- 
worth,  Tl  rick.  8',J7,  39'.:),  400;  The  I'eople 
V.  Costello,  1  Denio,  83.  X  similar  view 
of  the  nature  of  corroborative  evidence,  in 
cases  where  such  evidence  is  necessary, 
was  taken  by  Dr.  Lushington,  who  held 
that  it  meant  evidence,  not  merely  show- 
ing tliat  tlie  account  given  is  proliablc,  but 
proving  facts  fjiisdcm  generis,  and  tending 
to  produce  tlie  same  result.  Simmons  v. 
Simmons,  11  .lur.  «30.  And  see  Maddock 
V.  Sullivan,  2  Uich.  Eq.  R.  4. 

1  Hex  V.  Wilkes,  7  C.  &  P.  272,  per 
Alderson,  B. ;  Rex  v.  Moore,  Id.  270 ; 
Rex  V.  Addis,  G  C.  &  P.  388,  per  I'atteson, 
J. ;  Rex  V.  Wells,  1  Mood.  &  M.  326,  per 
Littledale,  J.;  Rex  v.  Webb,  G  C.  &  P. 
6'.J5;  Regina  v.  Dyke,  8  C.  &  P.  2G1 ;  Re- 
gina  V.  Birkett,  8  C.  &  P.  732 ;  Common- 
wealth  V.   Bosworth,   22  Pick.   3'J'J,   per 


Morton,  J.  The  course  of  opinions  and 
practice  on  this  subject  is  stated  more  at 
large  in  1  Phil.  Evid.  pp.  30-38 ;  2  Russ. 
on  Crimes,  pp.  956-UG8,  and  in  2  Stark. 
Evid.  p.  12,  note  (x),  to  which  the  learned 
reader  is  referred.  See  also  Roscoe's 
Crim.  Evid.  p.  120.  Chief  Baron  Joy, 
after  an  elaborate  examination  of  English 
authorities,  states  the  true  rule  to  be  this, 
that  "  the  confirmation  ought  to  be  in 
such  and  so  many  parts  of  the  accom- 
plice's narratice,  as  may  reasonably  satisfy 
the  jury  that  he  is  telling  truth,  without 
restricting  the  confirmation  to  any  particu- 
lar points,  and  leaving  tlie  eflect  of  such 
confirmation  (which  may  vary  in  its  effect 
according  to  tlie  nature  and  circumstances 
of  the  particular  case)  to  the  consideration 
of  the  juiy,  aided  in  that  consideration  by 
the  observations  of  the  judge."  See  Joy 
on  the  Evidence  of  Accomplices^,  pp.  98, 
99.  By  the  Scotch  law,  tlie  evidence  of 
a  single  witness  is  in  no  case  sufficient  to 
warrant  a  conviction,  unless  supported  by 
a  train  of  circumstances.  Alison's  Prac- 
tice, p.  5;')!.  In  Imra,  it  is  required  by 
statute,  that  the  corroboration  be  such  as 
shall  tend  to  connect  the  defendant  with 
the  commission  of  the  offence ;  and  not 
merely  to  show  the  commission  of  the 
crime,  or  its  circumstances.  Code  of 
1851,  art.  2998. 

•"i  Rex  V.  Noakes,  3  C.  &  P.  326,  per 
Littledale,  J. ;  Regina  r.  Bannen,  2  Mood. 
Cr.  Cas.  309.  The  testimony  of  the  wife 
of  an  accomplice  is  not  considered  as  cor- 
roborative of  her  husband.  Rex  v.  Neale, 
7  C.  &  P.  1G8,  per  Park,  J. 


CHAP.  II.]  COMPETENCY   OF   WITNESSES.  429 

namely,  persons  who  have  entered  into  communication  with  con- 
si)irators,  but  cither  afterwards  repenting,  or  having  originally 
determined  to  frustrate  the  enterprise,  have  subsequently  disclosed 
the  consj)iracy  to  the  pulJic  authorities,  under  whose  direction 
they  continue  to  act  with  their  guilty  confederates,  until  the  mat- 
ter can  be  so  far  advanced  and  matured,  so  as  to  insure  their 
conviction  and  punishment.  The  early  disclosure  is  considered 
as  binding  the  party  to  his  duty ;  and  though  a  great  degree  of 
objection  or  disAivor  may  attach  to  him  for  the  part  he  has  acted 
as  an  informer,  or  on  other  accounts,  yet  his  case  is  not  treated  as 
the  case  of  an  accomplice.^ 

§  383.  Whether  a  'party  to  a  negotiable  instrument,  who  has 
given  it  credit  and  currency  by  his  signature,  shall  afterwards  be 
admitted  as  a  witness,  in  a  suit  between  other  persons,  to  prove 
the  instrument  originaUy  void,  is  a  question  upon  which  judges 
have  been  much  divided  in  opinion.  The  leading  case  against  the 
admissil)ility  of  the  witness  is  that  of  WaUo7i  v.  Shelley^  in  which 
the  indorser  of  a  promissory  note  was  called  to  prove  it  void  for 
usury  in  its  original  concoction.  The  security  was  in  the  hands 
of  an  innocent  holder.  Lord  Mansfield,  and  the  other  learned 
judges  held  that  u])on  general  grounds  of  public  policy,  the  wit- 
ness was  inadmissible ;  it  being  "  of  consequence  to  mankind, 
that  no  person  should  hang  out  false  colors  to  deceive  them,  by 
first  affixing  his  signature  to  a  paper,  and  then  afterwards  giving 
testimony  to  invalidate  it."  And,  in  corroboration  of  this  opinion, 
they  referred  to  the  s])irit  of  that  maxim  of  the  Roman  law, — 
Nemo,  allegans  suam  turpitudinem,  est  audiendus.^ 

§  384.  The  doctrine  of  this  case  afterwards  came  under  discus- 
sion, in  the"  equally  celebrated  case  of  Jordaine  v.  Laslibrooke^ 

1  Eex  V.  Despard,  12  Howell's  St.  Tr.  Cod.  lib.  7,  tit.  8,  1.  5,  in  niarginc ;  Codex 

480,  per  Lord  Ellenborough.     [One  who  Jiistiniani  (4to,  Parisiis,  15uU),  lib.  7,  tit. 

purchases  intoxicating  liquor  sold  contrary  l(j,  1.  1 ;  Id.  tit.  8,  1.  5,  in  niargine  ;  I  Mas- 

to  law,  for  the  exjiress  purpose  of  prose-  card.  I)e  Prob.  Concl.  78,  n.  42.     And  seei 

cuting  the  seller  for  an  unlawful  sale,  is  4  Inst.  ■27'J.     It  seems  formerly  to  liayel 

not    an    accomplice.     Commonwealth    v.  been   deemed   sufficient   to   exclude   wit- 1 

Downing,  4  Gray,  2'J.]  nesses,  testifying  to  tiieir  own  turjutude;! 

'  1  T.  R.  2'J6.  but  the  objection  is  now  held  to  go  on!y| 

3  This  maxim,  though  it  is  said  not  to  to   the   credibility   of  the   testimony.      2 

be  expressed,  in  terms^  in  the  text  of  the  Stark.  Evid.  U,  10;  2  Hale,  P.  C.  280:  7' 

Corpus  Juris  (see  tiilmer's  Eep.  p.  275,  T.  K.  GO'.),  per   Grose,  J.;    Id.   Oil,  per 

note),  is  exceedingly  familiar  among  the  Lawrence,  J.     Thus,  a  witness  is  compe- 

civilians  ;  and  is  found  in  their  conmienta-  tent  to  testify  flmTTiisTbrrner  oath  was 

ries  on   various  laws  in  tlie  Code.     See  corruptly  false.     Tvex   r.   Teal,  11    East, 

Corpus  Juris  Glossatum,  torn.  iv.  col.  461,  oO'J ;  Hands  v.  Thomas,  6  M.  &  S.  244. 
17yy;   Corp.  Juris  Gothofredi  (fol.  edit.),  *  7  T.  K.  o'J'J. 


430  LAW    OF   EVIDENCE.  [PART   III. 

This  was  an  action  by  the  indorsee  of  a  bill  of  exchange  against 
the  acceptor.  The  bill  bore  date  at  Hamburg ;  and  the  defence 
was,  that  it  was  drawn  in  London,  and  so  was  void  at  its  creation, 
for  want  of  a  stamp;  the  statute^  having  declared,  that  unstamped 
bills  should  neither  be  pleaded,  given  in  evidence,  or  allowed  to 
bo  available,  in  law  or  equity.  The  indorser  was  offered  by  the 
defendant  as  a  witness,  to  prove  this  fact,  and  the  court  held  that 
lie  was  admissible.     This  case  might,  perhaps,  have  formed  an 

(exception  to  the  general  rule  adopted  in  Walton  v.  Shelley^  on  the 
ground,  that  the  general  policy  of  the  law  of  commerce  ought  to 
yield  to  the  public  necessity  in  matters  of  revenue  ;  and  this  neces- 
sity was  relied  upon  by  two  of  the  three  learned  judges  who  con- 
curred in  the  decision.  But  they  also  concurred,  with  Lord 
Kenyon,  in  reviewing  and  overruling  the  doctrine  of  that  case. 
The  rule,  therefore,  now  received  in  England  is,  that  the  party  to 
'  any  instrument,  whether  negotiable  or  not,  is  a  competent  witness 
to  prove  any  fact,  to  which  any  other  witness  would  be  competent 
to  testify ;  provided  he  is  not  shown  to  be  legally  infamous,  and 
is  not  directly  interested  in  the  event  of  the  suit.  The  objection, 
that  thereby  he  asserts  that  to  be  false  which  he  has  solemnly 
attested  or  held  out  to  the  world  as  true,  goes  only  to  his  credi- 
bility with  the  jury .2 

§  385.  The  courts  of  some  of  the  American  states  have  adopted 
the  later  English  rule,  and  admitted  the  indorser,  or  other  party 
to  an  instrument,  as  a  competent  witness  to  impeach  it,  in  all 
cases  where  he  is  not  on  other  grounds  disqualified.  Li  other 
states  decisions  are  found,  which  go  to  the  exclusion  of  the  party 
to  an  instrument  in  every  case^  when  offered  as  a  mtness  to^efeat 
it,  in  tlie  hands  of  a,  third  person ;  thus  importing  into  the  Lajs_of. 
Evidence  the  maxim  of  the  Roman  law  in  its  broadest  extent.  Li 
other  states,  tlie  courts,  referring  the  rule  of  exclusion  to  the 
ground  of  public  convenience,  have  restricted  its  application  to 

1  31  Gfto.  in.,  c.  25,  §§  2,  16.     Tliis  Willes,  Bull.  N.  P.  264 ;  Howard  v.  Bmith- 

act  was  passed  subsequent  to  the  decision  waite,  1  Ves.  &  B.  202,  208;  Title  v.  Gre- 

of  Walton  (!.  Siielley,  1  T.  R.  296.  vett,   2  Ld.    Raym.    1008;    Dickinson  v. 

-  1  riiil.  Evid.  3'J,  40.     On  this  ground,  ;  Dickinson,  9  Met.  471 ;  Twainhly  ?'.  Hen- 

l  parties  to  otlior  instruments,  as  well  asi    ley,  4  Mass.  441.     It  has,  however,  been 

I   subscribing  vyitnesses,  if  not  under  some  held  in  Louisiana,  that  a  notary  cannot  be 

other  disability,  are,  both  in  England  and  examined   as   a  witness,  to   contradict   a 

in  the  United  States,  held  admissible  wit-  statement  made  hy  him  in  a  i)rotest;  and 

nesses  to  impeach  the  original  validity  of  that  the  principle  extends  to  every  public 

sucii  instruments.     7  T.  II.  611,  per  Law-  officer,  in  regard  to  a  certificate  given  by 

rcnce,J.;  Ilevvard  r.  Shipley,  4  East,  180;  him    in    his    official   character.     Peet   u. 

Lowe  V.  Joliffi),  1  W.  Bl.  365 ;  Austin  v.  Dougherty,  7  Rob.  85. 


CHAP.  II.] 


COMPETENCY   OF   WITNESSES. 


431 


the  case  of  a  negotiable  security,  actually  negotiated  and  put  into 
circulation  before  its  maturity,  and  still  in  the  hands  of  an  inno- 
cent indorsee,  without  notice  of  the  alleged  original  infirmity,  or 
any  other  defect  in  the  contract.  And  in  this  case,  tlic  weight 
of  American  authority  may  now  be  considered  as  against  the 
admissibility  of  the  witness  to  impeach  the  original  validity  of 
the  security ;  although  tlie  contrary  is  still  holden  in  some  courts, 
whose  decisions,  in  general,  are  received  with  the  highest  respect.^ 


1  The  rule,  tliat  the  indorser  of  a  nego- 
tiable security,  iioyotiaied  before  it  was 
due,  is  not  admissible  as  a  witness  to  prove 
it  originally  void,  when  in  the  hands  of  an 
I  innocent  indorsee,  is  snstained  by  the  Su- 
[prenie  Court  of  the  United  States,  in  The 
Bank  of  the  United  States  r.  Dunn,  6 
Peters,  51,  57,  exi)lained  and  confirmed 
in  The  Bank  of  the  Metropolis  ?•.  Jones, 
8  Peters,  12,  and  in  the  United  States  v. 
Leffler,  11  Peters,  8ti,  'J4,  95;  Scott  v. 
Lloyd,  12  Peters,  149 ;  Henderson  v.  An- 
derson, 3  Howard,  s.  c.  Rep.  73 ;  [Salt- 
marsh  v.  Tiithill,  13  How.  U.  S.  22'J;] 
Taylor  v.  Luther,  2  Sumner,  235,  per 
Story,  J.  It  was  also  adopted  in  Massa- 
chusetts ;  Churchill  v.  Suter,  4  Mass.  156 ; 
Fox  v.  Whitney,  16  IMass.  118;  Packard 
r.  Kichardson,  17  Mass.  122.  See  also  the 
case  of  Thayer  v.  Crossman,  1  Metcalf,  K. 
416,  in  which  the  decisions  are  reviewed, 
and  the  rule  clearly  stated  and  vindicated, 
by  Shaw,  C.  J.  And  in  Neiv  Hampshire  ; 
Bryant  v.  Rittersbush,  2  N.  Hamp.  212; 
Haddock  v.  Wilmarth,  5  N.  Hamp.  187. 
And  in  Maine;  Deering  v.  Sawtel,  4 
Greenl.  I'Jl;  Chandler  v.  IMorton,  4 
Greenl.  374.  And  in  Pennsylvania ;  O'- 
Brien V.  Davis,  6  Watts,  498;'  Harrisburg 
Bank  v.  Forster,  8  Watts,  304,  309 ;  Dav- 
enport V.  Freeman,  3  Watts  &  Serg.  557 ; 
[Harding  r.  Mott,  20  Penn.  469 ;  Penny- 
packer  r.  Umberger,  22  lb.  492.]  In  Lhh- 
isiana,  the  rule  was  stated  and  conceded 
by  Porter,  J.,  in  Shamburg  v.  Commagere, 
10  iMartin,  18 ;  and  was  again  stated,  but 
an  opinion  w-itldielil,  by  Martin  J.,  in  Cox 
V.  Williams,  5  Martin,  139,  x.  s.  In  Ver- 
mont, the  case  of  Jordaine  r.  Lashbrooke 
was  followed,  in  Nichols  r.  Ilolgate,  2  Aik. 
138;  but  the  decision  is  said  to  have 
been  subsequentl}'  disapproved  by  all  the 
judges,  in  Chandler  v.  Mason,  2  Verm. 
198,  and  the  rule  in  Walton  v.  Shelley 
approved.  [In  a  later  case,  the  question 
came  directly  before  the  court,  and  the 
decision  in  Nichols  v.  Holgate  was  con- 
firmed. Pecker  v.  Sawyer,  24  Verm.  4-59.] 
In  Ohio,  the  indorser  was  admitted  to  prove 
facts  subser/iunt  to  the  indorsement ;  the 
court  expressing  no  opinion  upon  the  gene- 


ral rule,  though  it  was  relied  upon  by  the 
opposing  counsel.  Stone  c.  Vance,  6  Ohio 
Pep.  246.  But  subsequently  the  rule 
seems  to  have  been  admitted.  Pohrer  i*. 
ISIorningstar,  18  C)liio,  579.  In  Mississip}>i, 
the  witness  was  admitted  for  the  same 
purpose ;  anil  the  rule  in  Walton  r.  Shel- 
ley was  approved.  Drake  v.  Henley, 
Walker,  P.  541.  In  Illinois,  the  indorser 
has  been  admitted,  where,  in  taking  the 
note,  he  acted  as  the  agent  of  the  indorsee, 
to  whom  he  immediately  transferred  it, 
without  any  notice  of  the  rule.  Webster 
r.  Vicki'rs,'2  Scam.  295.  But  the  rule  of 
exclusicni  has  been  rejected,  and  the  gen- 
eral doctrine  of  Jordaine  v.  Lashbrooke 
followed  in  Netv  York ;  Stafford  v.  Kice,  5 
Cowen,  23 ;  Bank  of  Utica  v.  Hilliard,  Id. 
153 ;  Williams  v.  Walbridge,  3  Wend.  415. 
And  in  Vinjinia ;  Taylor  o.  Beck,  3  Ran- 
dolph, R.  316.  And  in  Connecticut :  Town- 
send  V.  Bush,  1  Conn.  260.  And  in  South 
Carolina ;  Knight  v.  Packard,  3  JMcCord, 
71.  [And  in  Texas;  Parsons  i'.  Pliipps,  4 
Tex.  341.]  And  in  Tennessee;  Stump  v. 
Napier,  2  Yerger,  35.  In  Man/land,  it 
was  rejected  by  three  judges  against  two, 
in  Ringgold  v'  Tyson,  3  H.  &  J.  172.^  It 
was  also  rejected  in  X<ic  Jerseij,  in  Free- 
man V.  Brittin,  2  Harrison,  192.  And  in 
North  Carolina;  Guy  f.  Hall,  3  Miu-pby, 
151.  And  in  Georgia;  Slack  v.  Moss, 
Dudley,  161.  And  in  Alahuna ;  Todd  v. 
StatlbiVl,  1  Stew.^199 ;  Grifiiug  v.  Harris, 
9  Porter,  226.  In  Kentuckij,  in  the  case  of 
Gorham  v.  Carroll,  3  Littell,  221,  where 
the  indorser  was  admitted  as  a  witness,  it 
is  to  be  observed,  that  the  note  was  in- 
dorsed witliout  recourse  to  him,  and  there- 
by marked  with  suspicion  ;  and  that  the 
general  ride  was  not  cwnsidered.  More 
recently  in  New  Hampshire,  the  doctrine 
of  Walton  ('.  Shelley  has  been  denied,  and 
the  rule  of  the  Roman  law  has  been  ad- 
mitted only  as  a  rule  of  estoppel  upon  the 
parties  to  the  transaction  anil  in  regard  to 
their  rights,  and  not  as  a  rule  of  evidence, 
aflecting  the  competency  of  witnesses; 
and  therefore  the  maker  of  a  note,  being 
released  by  his  surety,  was  held  compe- 
tent in  an  action  by  an  indorsee  against 


432 


LAW   OF   EVIDENCE. 


[part   III. 


§  386.  Another  class  of  persons  incompetent  to  testify  in  a 
cause  consists  of  those  who  are  interested  in  its  result}  The  prin- 
ciple on  which  these  are  rejected  is  the  same  with  that  which 
exchules  the  parties  themselves,  and  which  has  already  been  con- 
sidered ;2  namely,  the  danger  of  perjury,  and  tlie  little  credit 
generally  found  to  be  due  to  such  testimony,  in  judicial  investiga- 
tions. This  'disqualifying  interest,  however,  must  be  some  legal, 
certain,  and  immediate  interest,  however  minute,  either  in  the 
event  of  the  cause  itself,  or  in  the  record,  as  an  instrument  of 
evidence,  in  support  of  his  own  claims,  in  a  subsequent  action.^ 
It  must  be  a  legal  interest,  as  distinguished  from  the  prejudice  or 
bias  resulting  from  friendship  or  hatred,  or  from  consanguinity, 
or  any  other  domestic  or  social  or  any  official  relation,  or  any 
other  motives  by  which  men  are  generally  influenced;  for  these 
go  only  to  the  credibility.     Thus,  a  servant  is  a  competent  witness 


the  surety,  to  testify  to  an  alteration  of 
tlie  note, 'made  by  himself  and  the  payee, 
which  rendered  it  void  as  to  the  surety. 
Haines  v.  Dennett,  11  N.  Hamp.  180.  See 
further,  2  Stark.  Evid.  179,  note  (A); 
Bayley  on  Bills,  p.  586,  note  (h)  (riiil- 
lip.s  and  Sewall's  edit.);  [Chitty  on  Bills 
(12th  Am.  edit,  by  Terkins),  p.  717  et  secj. 
(*p.  GG'J  'cf  serj.).]  But  all  these  decisions 
against  the  rule  in  Walton  v.  Shelley,  ex- 
cept that  in  New  Jersey  and  the  last  cited 
case  in  Nejv  Hampshire,  were  made  long 
before  that  rule  was  recognized  and  adopt- 
ed by  tlie  Su])reme  Court  of  the  United 
^tates.  The  rule  itself  is  restricted  to 
cases  where  the  witness  is  called  to  prove 
■that  the  security  was  actually  void  at  the 
|time  wiien  he  gave  it  currency  as  good ; 
and  this  in  the  ordinary  course  of  business, 
and  without  any  mark  or  intimation  to 
])Ut  the  receiver  of  it  on  his  guard.  Hence 
the  indorser  is  a  competent  witness,  if  he 
indorsed  the  note  "  without  recourse  "  to 
himself;  Abbott  v.  Mitchell,  6  Shepl.  355; 
or,  is  called  to  prove  a  fact  not  going  to 
the  original  infirmity  of  the  security ; 
Buck  V.  Appleton,  2  Shepl.  284 ;  Wendell 
V.  George,  il.  M.  Charlton's  Rep.  51  ;  or, 
if  the  instrument  was  negotiated  out  of 
the  usiuil  course  of  business ;  Parke  v. 
Smith,  4  Watts  &  Serg.  287.-  So,  the  in- 
dorser of  iin  accommodation  note,  made 
for  his  benefit,  being  released  by  the 
maker,  is  admissible  as  a  witness  for  the 
latter,  to  i)rove  that  it  has  subsequently 
been  paicl.  (ireenough  v.  AVest,  8  N. 
Hamp.  400.  And  see  Kinsley  v.  Robin- 
son, 21  Pick.  327. 

^  In  C'oHiuxlicut,  persons   interested  in 


the  cause  are  now,  by  statute,  made  com- 
petent witnesses  ;  the  objection  of  interest 
going  only  to  their  credibility.  Rev.  Stat. 
1849,  tit.  1,  §  141.  In  Neiv  York,  persons 
interested  are  admissible,  except  those  for 
whose  immediate  benefit  tlie  suit  is  prose- 
cuted or  defended,  aiid  the  assign(jr  of  a 
thing  in  action,  assigned  for  the  purpose 
of  making  him  a  witness.  Rev.  Stat.  vol. 
3,  p.  7Gy,"od  edit.  In  Ohio,  the  law  is  sub- 
stantially the  same.  Stat.  March  23,  1850, 
§  3.  In  Michigan,  all  such  persons  are 
admissible,  except  parties  to  the  record, 
and  persons  for  whose  immediate  benefit 
the  suit  is  prosecuted  or  defentled ;  and 
their  husbands  and  wives.  Rev.  Stat. 
1846,  ch.  102,  §  99.  In  Vircjinia,  persons 
interested  are  admissible  in  criminal  cases, 
when  not  jointly  tried  with  the  defendant. 
Rev.  Stat.  1849,  ch.  199,  §  21.  In  .l/«s*«- 
chiisef/.'i,  the  objection  of  interest  no  longer 
goes  to  the  competency  of  any  witnesses, 
except  witnesses  to  wills.  Gen.  Stat,  ch^ 
131,  §  14.  See  supra,  §§  327,  329,  notes! 
[The  admission  by 'statute,  of  parties  as 
witnesses,  of  course  removes  the  objeetioa 
of  interest.  In  some  states,  where  i)arties' 
are  not  permitted  to  testity,  the  objection! 
of  interest  is  removed  by  statute.  /5'(//jco,| 
§§  327,  329,  notes.] 

2  Supra,  §§  326,  327,  329.  And  see 
the  observations  of  Best,  C.  J.,  in  Hovill 
V.  Steplii'uson,  T)  Bing.  493. 

8  1  Stark.  Evid.  102 ;  Bent  v.  Baker, 
3  T.  R.  27 ;  Doe  v.  Tyler,  6  Bing.  390, 
per  Tindal,  C.  J. ;  Smith  v.  Prager,  7  T. 
R.  62 ;  Wilcox  v.  Farrell,  1  H.  Lords  Cas. 
93;  Bailey  v.  Lumpldn,  1  Kelly,  392. 


CHAP.  II.]  COMPETENCY   OF   WITNESSES.  433 

for  his  master,  a  child  for  his  parent,  a  poor  dependent  for  his 
patron,  an  accomplice  for  the  government,  and  the  like.  Even 
a  wife  has  been  held  admissible  against  a  prisoner,  though  she 
believed  that  his  convictiun  Avould  save  her  husband's  life.^  The 
rule  of  the  Roman  law,  —  Idonei  non  vidcntur  esse  testes,  quihiis 
imperari  j^otest  ut  testes  ficnt-'  —  has  never  been  recognized  in  the 
common  law,  as  affecting  the  competency ;  1)ut  it  prevails  in  those 
conntries  in  whose  jurisprudence  the  authority  of  the  Roman  law 
is  recognized.  Neither  does  the  connnon  law  regard  as  of  binding 
force  the  rule  that  excludes  an  advocate  from  testifying  in  the 
cause  for  his  client ;  —  JIandatis  cavetur,  ut  Prcesides  attendant^  ne 
patroni,  in  causa  ciii  patrocinium  ptroistiterunt,  testimonium  dicant.^ 
But  on  grounds  of  public  policy,  and  for  the  purer  administration 
of  justice,  the  relation  of  lawyer  and  client  is  so  far  regarded  by 
the  rules  of  practice  in  some  courts,  as  that  the  lawyer  is  not  per- 
mitted to  be  both  advocate  and  witness  for  his  client  in  the  same 


cause 


§  387.  The  interest^  too,  must  be  real,  and  not  merely  appre- 
hended by  the  party.  For  it  would  be  exceedingly  dangerous  to 
violate  a  general  rule,  because  in  a  particular  case,  an  individual 
does  not  understand  the  nature  or  extent  of  his  rights  and  liabili- 
ties. If  he  believes  and  states  that  he  has  no  interest,  the  very 
statement  of  the  objection  to  his  competency  may  inform  him  that 
he  has ;  and  on  the  other  hand,  if  he  erroneously  thinks  and  de- 
clares that  he  is  interested,  he  may  learn,  by  the  decision  of  the 
court,  that  he  is  not.  Indeed,  there  would  be  danger  in  resting 
the  rule  on  the  judgment  of  a  witness,  and  not  on  the  fact  itself; 
for  the  apprehended  existence  of  the  interest  might  lead  his  judg- 
ment to  a  wrong  conclusion.  And  moreover,  the  inquiry  wliich 
would  be  necessary  into  the  grounds  and  degree  of  the  witness's 
belief,  would  always  be  complicated,  vague,  and  indefinite,  and 

1  Eex  V.  Rudd,  1  Leach,  Cr.  Cas.  135,  "  Dig.  lib.  22,  tit.  5,  1.  25 ;  Toth.  Obi. 
151.     In  weiirliinfj  tlie  testimony  of  wit-     [793.] 

nesses  naturally  biased,  the  rule  is  to  t;ive  *  Stones  r.  Byron,  4  Dowl.  &  Lowndes, 

credit  to  their  statements  of  facts,  anil  to  393;    Dunn   r.   Packwood,    11    ,Iiir.   242; 

view  their  deductions  from  facts  with  sus-  Keg.  Gen.  Sup.  Court,  N.  llauip.  Keg.  23, 

picion.     Dillon  »•.  Dillon,  3  Curt.  96.  6  N.  Ilanip.  K.  580;    Mishler  v.  Baum- 

2  Dig.  lib.  22.  tit.  5,  1.  6  ;  Poth.  Obi.  gardner,  1  Anier.  Law  Jour.  304,  n-.  .s. 
[793.]  In  fjmu.r  Canada,  the  incomjwtency  But  see  contra,  Little  v.  Keon,  1  N.  Y. 
of  the  relations  and  connections  of  the  par-  Code  Kep.  4  ;  1  Sandf  (307  ;  Potter  r. 
ties,  in  civil  cases,  beyond  the  degree  of  Ware,  1  Cusli.  518,  524,  and  cases  cited 
cousins-germ;ui,  is  removed  bv  Stat.  41  by  Metcalf,  J. 

Geo.  Ill  c.  8.     Sec  Kev.  Code,  1845,  p. 
144. 

VOL.  I.  37 


¥< 


«   > 

434  LAW    OF    EVIDENCE.  [PAP.T    III.    \  .. 

productive  of  much  inconvenience.     For  these  reasons,  the  more  v 
simple  and  practicable  rule  has  been  adopted  of  determining  the  'y   , 
admissibility  of  the  witness  by  the  actual  existence,  or  not,   of    ;,^  ^ 
any  disqualifying  interest  in  the  matter.^  '  y'' 

§  388.  If  the  witness  believes  himself  to  be  under  an  honorary 
oUigation^  respecting  the  matter  in  controversy,  in  favor  of  the 
party  calling  him,  he  is  nevertheless  a  competent  witness,  for 
the  reasons  already  given ;  and  his  credibility  is  left  with  the 
jury.2 

§  389.  The  disqualifying  interest  of  the  witness  must^_be  in  the 
event  of  the  cause  itself,  and  not  in  the  question  to  be  decided. 
His  liability  to  a  like  action,  or  his  standing  in  the  same  predica- 
ment with  the  party,  if  the  verdict  cannot  be  given  in  evidence 
for  or  against  him,  is  an  interest  in  the  question  only,  and  does 
not  exclude  him.^  Thus,  one  underwriter  may  be  a  witness  for 
an(jther  underwriter  upon  the  same  policy ;  ^  or,  one  seaman  for 
another,  whose  claim  for  wages  is  resisted,  on  grounds  equally 
affecting  all  the  crew ;  ^  or,  one  freeholder  for  another,  claiming 
land  under  the  same  title,  or  by  the  same  lines  and  corners  ;^  or, 
one  devisee  for  another,  claiming  under  the  same  will ; '''  or,  one 
trespasser  for  his  co-trespasser ;  ^  or,  a  creditor  for  his  debtor ;  ^ 
or  a  tenant  by  the  courtesy,  or  tenant  in  dower,  for  the  heir  at  law, 
in  a  suit  concerning  the  title. ^'^     And  the  purchaser  of  a  license  to 

1  1    Pliil.    Evid.    127,    128  ;    1    Stark.  Gilpin  v.  Vincent,  9  Johns.  219 ;  Moore  v. 

Evid.    102;    Greslcy   on   Evid.    p.    253;  Hitciicock,  4  Wend.  292  ;  Union  Bank  ?;. 

Tait  on  Evid.  p.  351.     In  America  and  in  Ivnapp,  3  Pick.  9G,  108;  Smith  v.  Downs, 

England,  there  are  some  early  but  very  6   Conn.  365 ;    Stimniel  v.  Underwood,  3 

respectable  authorities  to  the  point,  that  a  Gill   &  Johns.   282 ;    Howe  v.   Howe,  10 

witness  believing  himself  interested  is  to  N.  Hump.  88. 

be  rejected  as  incompetent.     See  Fothcr-  ^  Evans  v.  Eaton,  7  Wheat.  356,  424, 

inghani  v.  Greenwood,  1  Stra.  129;  Tre-  per  Story,  J.;    Van  Nuys  r.  Terliune,  3 

lawny  v.  Thomas,  1   II.  El.  307,  per  Ld.  Johns.  Cas.  82;  Stewart  v.  Kip,  5  Johns. 

Lougliborough,    C.   J.,    and    Gould,    J.;  256;    Evans  v.   Hettich,    7    Wheat.  453; 

L'Amitie,   G   Rob.    Adm.   269,  note   (a) ;  Clapp  v.  Mandeville,  5  How.  JMis.  R.  197. 

Plumb   V.  Whiting,  4  Mass.   518 ;    Rich-  *  Bent  v.  Baker,  3  T.  R.  27. 

ardson  v.  Hunt,  2  Munf.  148  ;  Freeman  v.  ^  Spurr    v.   Pearson,    1    Mason,    104  ; 

Lucket,   2  J.   J.    Marsh.    390.      But   the  Hoyt  v.  Wildfire,  3  Johns.  518. 

weight    of    modern   authority   is    clearly  "  Richardson   v.   Carey,   2   Rand,  87 ; 

the  otiier  way.     See  Commercial  Bank  of  Owings  v.  S])eed,  5  Wheat.  423. 

Albany   v.   Hughes,    17    Wend.    94,    101,  '  Jackson  v.  Hogftrth,  6  Cowen,  248. 

102 ;  Stall  v.  The  Catskill  Bank,  18  Wend.  »  Per  Ashurst,  J.,  in  Walton  v.  Shel- 

466,  475,  476 ;   Smith  v.  Downs,  6  Conn,  ley,  1   T.  R.  301.     See   also  Blackett  v. 

871;    Long  v.   Bailie,   4   S.   &  R.   222;  Weir,  5  B.  &  C.  387,  per  Abbott,  C.  J. ; 

Dellone  v.  Rechmer,  4  Watts,  9 ;  Stimmel  Duncan  v.  Meikleham,   3  C.  &  P.  192 ; 

V.   Underwood,   3  G.  &  J.  282;  Ilavis  v.  Curtis  i\  Graham,  12  Martin,  289. 

Barkley,  1  Harper's  Law  Rep.  63.     And  ^  Paull  r.  Brown,  6  Esp.  34;  Nowell  v. 

see  wfra,  §  423,  n.  Davies,  5  B.  &  Ad.  368. 

-  Peterson  v.  Stoffles,  1  Campb.  144 ;  «  Jackson   v.   Brooks,    8   Wend.  426 ; 

Solorcte  v.  Melville,  1  Man.  «&  Ryl.  198 ;  Doe  v.  Maisey,  1  B.  &  Ad.  439. 


CHAP.  II.]  COMPETENCY   OF   WITNESSES.  435 

use  a  patent  may  be  a  witness  for  tlic  patentee,  in  an  action  for 
infringinp;  the  patent. ^ 

§  3U0.  Thejrue  test  of  the  interest  of  a  witness  is,  that  he  will 
either  j^ain_orJoseJr^the_direc^k^ 

judgment,  or  that  the  record  will  be  legal  evidence  for  or  against 
hini^  in  some  other  action. ^  It  must  be  a  present,  certain,  and 
vested  interest,  and  not  an  interest  nncertain,  remote,  or  contin- 
gent. Thus  the  heir  apparent  to  an  estate  is  a  competent  witness 
in  support  of  the  claim  of  his  ancestor;  though  one,  who  has 
a  vested  interest  in  remainder,  is  not  competent.^  And  if  tlio 
interest  is  of  a  doubtful  nature,  the  olyection  goes  to  the  credit  of 
the  witness,  and  not  to  his  competency.  For,  being  always  pre- 
sumed to  be  competent,  the  burden  of  proof  is  on  the  objecting 
party,  to  sustain  his  exception  to  the  competency ;  and  if  he  fails 
satisfactorily  to  establish  it,  the  witness  is  to  be  sworn.^ 

§  301.  The  magnitude  or  degree  of  the  interest  is  not  regarded  in 
estimating  its  effect  on  the  mind  of  the  witness ;  for  it  is  impossi- 
ble to  measure  the  influence  which  any  given  interest  may  exert. 
It  is  enough,  that  the  interest  which  he  has  in  the  subject  is  direct, 
certain,  and  vested,  however  small  may  be  its  amount ;  ^  for,  in- 
terest being  admitted  as  a  disqualifying  circumstance  in  any  case, 
it  must  of  necessity  be  so  in  every  case,  whatever  be  the  character, 
rank,  or  fortune  of  the  party  interested.  Nor  is  it  necessary,  that 
the  witness  should  be  interested  in  that  which  is  the  subject  of 
the  suit ;  for,  if  he  is  liable  for  the  costs,  as  in  the  case  of  a  ;.7w- 
chein  amy,  or  a  guardian,  or  the  like,  we  have  already  seen,*^  that 
he  is  incompetent.  And  though,  where  the  witness  is  equally 
interested  on  both  sides,  he  is  not  incompetent ;  yet  if  there  is  a 
certain  excess  of  interest  on  one  side,  it  seems  that  he  will  be 
incompetent  to  testify  on  that  side;  for  he  is  interested,  to  the 
amount  of  the  excess,  in  procuring  a  verdict  for  the  party,  in 
whose  favor  his  interest  preponderates.'^ 

1  De  Rosnie  v.  Fairlie,   1  M.  &  Kob.  but  to  the  plaintiff's^  executor.     Leach  v. 

457  Thomas,  7  C.  &  V.  'oil. 

■^  1  Glib.  Evid.  bv  LofT\,  p.  225  ;  BulL  *  Bent  r.  Baker,  3  T.  R.  27.  32 ;  Jack- 

N  P    284  •  Bent  v.  Baker,  3  T.  K.  27  ;  6  son  v.  Benson,  2  Y.  &  J.  45  ;  Hex  v.  Cole, 

Bin"  31)4  'per  Tindal,  C.  J. ;  s'lpra,  §  380;  1  Esp.  If.U  ;  IHiel  v.  Fisher,  4  Demo,  ol5 ; 

Rex"  v.  B(')ston,  4  East,  581,  per  Lord  El-  Couistock  (•.   Kayford,  12  8.  &  M.  309  ; 

lenborou<'li  '  Story  v.  Saunders,  8  Humph.  003. 

«  SmiUi    r.   Blackham,    1    Salk.   283:  &  Burton  v.  Hinde,  5  T.  R.  173;  But- 

Doe  r.  Tyler,  0  Bin^'.  3U0.     But  in  an  ac-  ler  c.  Warren,  11  Joiins.  o7  ;  Doe  v.  Tooth, 

tiun  for  waste,  brouj;ht  by  a  landlord,  who  3  Y.  &  J.  li).  ■  j-       At^^ 

is  tenant  tor  liie,  the  rem:iinder-man  is  a  '^  ^iqua,  §  347.     See   also,  injra,  401, 

competent  witness  ibr  the  plaintifl";  for  the  402.  _  a^,     ,     ,  -n    o    t  i  qoo 

damages  would  not  belong  to  the  witness,  '  LarbalesUer  v.  Clark,  1  B.  &  Ad.«a9. 


436 


LAW    OF    EVIDENCE, 


[part  III. 


§  392.  The  nature  of  the  direct  interest  in  the  event  of  the  suit 
which  disqualifies  the  witness  may  be  illustrated  by  reference  to 
son^e  adjudged  cases.  Thus,  persons  having  become  bail  for  the 
defendant  have  been  held  incompetent  to  testify  as  witnesses  on 
his  side ;  for  they  are  immediately  made  liable,  or  discharged,  by 
the  judgment  against  or  in  favor  of  the  principal.  And  if  the  bail 
have  given  security  for  the  appearance  of  tlie  defendant,  by  deposit- 
ing a  sum  of  money  with  the  officer,  the  effect  is  the  same.^  If  an 
underwriter,  who  has  paid  his  proportion,  is  to  be  repaid  in  the 
event  of  tlie  j)laintiff's  success  in  a  suit  against  another  underwriter 
upon  the  same  policy,  he  cannot  be  a  witness  for  the  plaintiff. ^ 
A  creditor,  whether  of  a  bankrupt,  or  of  an  estate,  or  of  any  other 
person,  is  not  admissible  as  a  witness  to  increase  or  preserve  the 
fund,  out  of  which  he  is  entitled  to  be  paid,  or  otherwise  beiiefited.^ 
Nor  is  a  bankrupt  competent  in  an  action  by  his  assignees,  to 
prove  any  fact  tending  to  increase  the  fund  ;  though  both  he  and  his 


Where  this  preponderance  arose  from  a 
liability  to  costs  only,  the  rule  formerly 
was  to  admit  the  witness  ;  because  of  the 
extreme  ditliculty  which  frequently  arose, 
of  determining  the  question  of  his  liability 
to  pay  the  costs,  bee  Ilderton  v.  Atkin- 
son, 7  T.  R.  480;  Birt  v.  Kershaw,  2 
East,  458.  But  these  cases  .were  broken 
in  upon,  by  Jones  v.  Brooke,  4  Taunt. 
464 ;  and  the  witness  is  now  held  incom- 
petent, wherever  there  is  a  preponder- 
ancy  of  interest  on  the  side  of  the  party 
adducing  him,  though  it  is  created  only 
by  th'e  liability  to  costs.  Townsend  v. 
liowning,  14  East,  56.5 ;  Ilubbly  v.  Brown, 
It)  Johns.  70;  Scott  v.  McLellan,  2  Greenl. 
199 ;  Bottomley  v.  Wilson,  3  Stark.  K. 
148 ;  Harman  v.  Lesbrey,  1  Holt's  Cas. 
390 ;  Edmonds  v.  Lowe,  8  B.  &  C.  407. 
And  see  Mr.  Evans's  observations,  in  2 
Potli.  Obi.  p.  2G9,  App.  No.  16.  The  ex- 
istence of  such  a  rule,  however,  was  re- 
gretted by  Mr.  Justice  Littledale,  in  1  B. 
&  Ad.  903 ;  and  by  some  it  is  still  tliought 
the  earlier  cases,  above  cited,  are  support- 
ed by  the  better  reason.  See  further, 
Barrotto  v.  Snowden,  4  Wend.  181 ;  Hall 
V.  Hale,  8  Conn.  336. 

1  Lacon  v.  lliggins,  3  Stark.  R.  132; 
1  T.  R.  164,  per  Buller,  J.  But  in  such 
cases,  if  the  defendant  wishes  to  examine 
his  bail,  the  court  will  either  allow  his 
name  to  be  stricken  out,  on  tlie  defend- 
ant's adding  and  justifying  anotJier  person 
as  liis  bail ;  or,  even  at  the  trial,  will  ])cr- 
mit  it  to  be  stricken  out  of  the  bail-piece, 
upon  tlie  defendant's   depositing   a  suffi- 


cient sum  with  the  proper  officer.  1 
Tidd's  Pr.  259  ;  Baillie  r.  Hole,  1  Mood.  & 
M.  289 ;  3  C.  &  P.  560,  s.  c. ;  Whartlev  v. 
Fearnley,  2  Chitty,  R.  103.  And  in  like 
manner  the  surety  in  a  replevin-bond  may 
be  rendered  a  competent  witness  for  the 
plaintiff.  Bailey  v.  Bailey,  1  Bing.  92.  And 
so  of  the  indorser  of  a  writ,  who  thereby 
becomes  surety  for  payment  of  the  costs. 
Roberts  v.  Adams,  9  Greenl.  9.  So  in 
Indiana,  of  a  procimn  amy.  Harvey  v.  Cof- 
fin, 5  Blackf  566.  See  further,  Salmon  v. 
Ranee,  3  S.  &  R.  311,  314 ;  Hall  r.  Bay- 
lies, 15  Pick.  51,  53 ;  Beckley  i'.  Free- 
man, Id.  468  ;  Allen  v.  Hawks,  13  Pick. 
79 ;  McCuUoch  i'.  Tyson,  2  Hawks,  336 ; 
infra,  §  430 ;  Comstock  v.  Paie,  3  Rob. 
Louis.  R.  440. 

•2  Forrester  v.  Pigou,  3  Campb.  380 ;  1 
M.  &  S.  9,  s.  c. 

3  Craig  V.  Cundell,  1  Campb.  381; 
Williams  v.  Stephens,  2  Campb.  301 ; 
Shuttleworth  v.  Bravo,  1  Stra.  507  ;  Powel 
V.  Gordon,  2  Esp.  735 ;  Stewart  v.  Kip,  5 
Johns.  256 ;  Holden  v.  Hearn,  1  Beav. 
445.  But  to  disqualify  the  witness,  he 
must  bo  legally  entitled  to  payment  out  of 
tlie  fund.  I'henix  r.  Ingrahani,  5  Johns. 
427  ;  I'eyton  v.  llallett,  1  Caines,  363,  379  ; 
Howard  v.  Cliadbourne,  3  Greenl.  461 ; 
Marland  v.  Jetlerson,  2  Pick.  240 ;  Wood 
V.  Braynard,  9  Pick.  322.  A  mere  expec- 
tation of  payment,  however  strong,  if  not 
amounting  to  a  legal  riglit,  has  been 
deemed  insufficient  to  render  him  incom- 
petent.    Seaver  v.  Bradley,  6  Greenl.  GO. 


CHAP.  II.] 


COMPETENCY   OF   WITNESSES. 


43i 


creditors  may  be  witnesses  to  diminish  it.^  The  same  is  true  of 
a  legatee,  without  a  release,  and  also  of  an  heir  or  distributee,  in  any 
action  atlecting  the  estate.^  So,  where  the  immediate  effect  of  the 
judgment  for  the  plaintiff  is  to  confirm  the  witness  in  the  enjoy- 
ment of  an  interest  in  possession,^  or,  to  place  him  in  the  imme- 
diate possession  of  a  right,*  he  is  not  a  competent  witness  for  the 
plaintiff.  Neither  can  a  lessor  be  admitted  as  a  witness,  to  prove 
a  right  of  possession  in  his  lessee  to  a  portion  of  land  claimed  as 
part  of  the  premises  leased.^ 

§  393.  So  where  the  event  of  the  suit,  if  it  is  adverse  to  the 
party  adducing  the  witness,  will  render  the  latter  liahU  either  to 
a  third  person,  or  to  the  party  himself,  whether  the  liability  arise 
from  an  express  or  implied  legal  obligation  to  indemnify,  or  from 
an  express  or  implied  contract  to  pay  money  upon  that  contingency, 
the  witness  is  in  like  manner  incompetent.  The  cases,  under  this 
branch  of  the  rule  are  apparently  somewhat  conflicting ;  and 
therefore  it  may  deserve  a  more  distinct  consideration.  And  here 
it  will  be  convenient  to  distinguish  between  those  cases  where  the 
juclgment  will  be  evidence  of  the  material  facts  involved  in  the 


1  Butler  V.  Cooke,  Cowp.  70 ;  Ewens 
V.  Quid,  Bull.  N.  P.  43 ;  Green  c.  Jones, 
2  Canipb.  411 ;  Loyd  v.  Stretton,  1  Stark. 
1\.  40;  Rudge  v.  Ferp:uson,  1  C.  &  P.  253; 
:Masters  v.  l')rayton,  2  T.  K.  49G  ;  Clark  v. 
Kirkland,  4  Martin,  405.  In  order  to  ren- 
der the  bankrupt  competent,  in  such 
cases,  he  must  release  his  allowance  and 
surplus  ;  and  he  must  also  have  obtained 
his  certificate,  without  which  ho  is  in  no 
case  a  competent  witness  for  his  assignees. 
IMasters  v.  Drayton,  2  T.  R.  4'JtJ ;  Good- 
hay  V.  Hendry,  1  IMood.  &  M.  319.  And 
though  his  certificate  has  been  allowed 
by  tlie  competent  number  of  creditors,  and 
no  opposition  to  its  final  allowance  is  anti- 
cipated, yet  Tintil  its  allowance  by  the 
Lord  Chancellor,  he  is  still  incompetent ; 
nor  will  the  trial  for  that  purpose  be  post- 
poned. Tenant  v.  Strachan,  1  Mood.  & 
^I.  377.  So,  if  his  certificate  has  been 
finally  obtained,  yet,  if  his  future  effects 
remain  liable  (ap  in  the  case  of  a  second 
bankruptcy,  where  he  has  not  yet  paid  the 
amount  necessary  to  exempt  his  future 
acquisitions),  he  is  still  incompetent  as  a 
witness  for  the  assignees,  being  interested 
to  increase  the  fund.  Kennet  v.  Green- 
wt)llers,  Peakc's  Cas.  3.  The  same  rules 
apply  to  the  case  of  insolvent  debtors.  De- 
lafieid  V.  Freeman,  6  Bing.  294 ;  4  C.  & 
P.  67,  s.  c. ;  Rudge  i\  Fergu.son,  1  C.  & 
P.  253.     But  upon  grounds  of  public  pol- 


icy and  convenience,  a  bankrupt  is  held 
inadmissible  to  prove  any  fact  which  is 
material  to  support  or  to  defeat  the  fiat 
issued  against  him.  Nor  is  a  creditor 
competent  to  support  the  fiat,  whether  he 
has  or  has  not  availed  himself  of  the  right 
of  proving  under  the  bankruptcy.  See 
1  Phil.  Evid.  94,  95,  90,  and  cases  there 
cited. 

-  Hilliard  v.  Jennings,  1  Ld.  Raym. 
505 ;  1  Burr.  424  ;  2  Stark.  R.  546  ;  Creen 
V.  Salmon,  3  N.  &  P.  388 ;  Bloor  r.  Da- 
vies,  7  M.  &  W.  235.  And  if  he  is  a  r|5^ 
siduary  legatee,  his  own  release  of  the 
debt  will  not  render  liim  competent  for  the 
execiUor,  in  an  action  against  the  debtor; 
for  he  is  still  interesteil  in  supporting  the 
action,  in  order  to  relieve  the  estate  froni, 
the  charge  of  the  costs.  Baker  v.  Tyr- 
whitt,  4  Campb.  27  ;  6  Bing.  394,  per  Tin- 
dal,  C.  J.;  Matthews  r.  Smith,  2  Y.  &  J. 
420;  Allington  r.  Bearcroft,  I'eake's  Add. 
Cas.  212;  West  v.  Randall,  2  Mason.  181  ; 
Randall  v.  Phillips,  3  Mason,  378;  Camp- 
bell r.  Tousey,  7  Cowen,  04  ;  Carlisle  r. 
Bm-ley,  3  Grcenl.  250.  Nor  is  a  legatee 
competent  to  testify  against  the  validity 
of  the  will,  if  it  is,  on  the  whole,  for  his 
interest  to  defeat  it.  Roberts  v.  Trawick, 
13  Ala.  08. 

*  Doe  v.  Williams,  Cowp.  021. 

*  Rex  V.  Williams.  9  B.  &  C.  549. 
5  Smith  V.  Chambers,  4  Esp.  104. 


? 


37^ 


438  LAW   OF   EVIDENCE.  [PART  III. 

1 .1  issue,  and  those  where  it  will  he  evidence  only  of  the  amount  of 
knT; damages  recovered,  which  the  defendant  may  he  compelled  to  pay. 
^  Jji  the-femicr  class,  which  will  hereafter  be  considered,  the  interest 
of  the  partyiis  in  the  record,  to  establish  his  entire  claim ;  in  the 
latter,  which  belongs  to  the  present  head,  it  is  only  to  prove 
the  amount  of  the  injury  he  has  suffered. 

§  304.  Thus,  in  an  action  against  the  principal  for  damage 
occasioned  ))y  the  neglect  or  misconduct  of  his  agent  or  servant,  the 
latter  is  not  a  competent  witness  for  the  defendant  without  a 
release  ;  for  he  is,  in  general,  liable  over  to  his  master  or  employer, 
in  a  subsequent  action,  to  refund  the  amount  of  damages  which  the 
latter  may  have  paid.  And  though  the  record  will  not  be  evidence 
against  the  agent,  to  establish  the  fact  of  misconduct,  unless  he 
has  been  duly  and  seasonably  informed  of  the  pendency  of  the  suit, 
and  required  to  defend  it,  in  which  case  it  will  be  received  as  evi- 
dence of  all  the  facts  found ;  ^  yet  it  will  always  be  admissible  to 
show  the  amount  of  damages  recovered  against  his  employer.^ 
The  princijjle  of  this  rule  applies  to  the  relation  of  master  and 
servant,  or  employer  and  agent,  wherever  that  relation  in  its 
broadest  sense  may  be  found  to  exist ;  as,  for  example,  to  the  case 
of  a  pilot,  in  an  action  against  the  captain  and  owner  of  a  vessel 
for  mismanagement,  while  the  pilot  was  in  cliarge ;  ^  or,  of  the 
guard  of  a  coach,  implicated  in  the  like  mismanagement,  in  an 
action  against  the  proprietor  ;  *  or,  of  a  broker,  in  an  action  against 
the  principal  for  misconduct  in  the  purchase  of  goods,  which  he 
had  done  through  the  broker ;  ^  or,  of  a  sheriff's  officer,  who  had 
given  security  for  the  due  execution  of  his  duty,  in  an  action 
against  the  sheriff  for  misconduct  in  the  service  of  process  by  the 
same  officer ;  ^  or,  of  a  ship-master,  in  an  action  by  his  owner 
against  underwriters,  where  the  question  was,  whether  there  had 

1  Hamilton  v.  Cutts,  4  Mass.  349 ;  Ty-  v.  Mainwaring,  1  Holt's  Cas.  139 ;  Boor- 

ler  V.  Ulmer,  12  Mass.  163.     See  infra,  man  v.  Browne,  1  P.  &  D.  364 ;  Moorish 

§§  .523,  527,  538,  539.  v.  Foote,  8  Taunt.  454. 

-  Green  v.  New  River  Cc.  4  T.  R.  589.         «  Powel  v.  Hord,  1  Stra.  650 ;  2  Ld. 

3  Hawkins  v.  Finlayson,  3  C.  &  P.  305.  Raym.  1411,  s.  c. ;  Wliitehouse  v.  Atkin- 

But  tlie  pilot  lias  been  held  admissible  in  son,  3  C.  &  P.  344;  Broom  v.  Bradley,  8 

an  action  by  the  owners  against  tiie  under-  C.  &  P.  500.     So,  the  creditor  is  incompe- 

writcrs,  tor'tlie  loss  of  the  vessel  wiiile  in  tent  to  testify  for  the  officer,  where  he  is 

l\is  charge,  on  the  ground  that  his  interest  liable  over  to  the  latter,  if  the  plaintitf  suc- 

was   balanced.     Varin  v.  Canal  Ins.  Co.  ceeds.     Keightley  v.  Birch,  3  Campb.  521. 

1  Wilcox,  223.  See  also  Jewett  v.  Adams,  8  Greenl.  30 ; 

*  Whitamore  v.  Waterhouse,  4  C.  &  P.  Turner  v.  Austin,  16  Mass.  181 ;  Rice  v. 

383.  AVilkins,  8  Sliepl.  5-58;  [Howland  v.  Wil- 

o  Field  V.  Mitchell,  6  Esp.  71  ;  Gevers  letts,  5  SeUlen,  170.] 


\ 


CHAP.  II.]  COMPETENCY   OF   WITNESSES.  439 

been  a  deviation;^  neither  of  whom  are  com})etent  to  give  testi- 
mony, the  direct  legal  effect  of  whicli  will  he,  to  place  themselves 
in  a  situation  of  entire  security  against  a  suV)sequent  action.  JBut 
the  liability  must  be  direct  and  innnediate  to  the  party  ;  for_if  Jlie 
witness  is  liable  to  a  third  person,  who  i^liable^^o  tlie  party,  such 
circuity  of  interest  is  no  legal  ground  of  exclusion.^  The  liability 
also  must  be  legal ;  for  if  the  contract  be  against  law,  as,  for  ex- 
ample, if  it  be  a  promise  to  indemnify  an  officer  for  a  violation  of 
his  duty  in  the  service  of  process,  it  is  void ;  and  the  promisor  is 
a  competent  witness,  the  objection  going  only  to  his  credibility .^ 

§  395.  The  same  principle  applies  to  other  cases,  where  the_direct 
effect  of  the  judgment  will  be  to  create  any  other  legal  claim  against 
tlie  witness.  Tims,  if  he  is  to  repay  a  sum  of  money  to  the 
plaintiff,  if  he  fails  in  the  suit  he  is  incompetent  to  bo  sworn  for 
the  plaintiif.-*  So,  in  an  action  on  a  policy  of  insurance,  where 
there  has  been  a  consolidation  rule,  an  underwriter,,  who  is  a  party 
to  such  rule,  is  not  a  competent  witness  for  others.^  Tlie  case  is 
the  same,  wherever  a  rule  is  entered  into,  that  one  action  shall 
abide  the  event  of  another ;  for  in  both  these  cases  all  the  parties 
have  a  direct  interest  in  the  result.  And  it  makes  no  difference  inj 
any  of  these  cases,  whether  the  witness  is  called  by  the  plaintiff  or 
by  the  defendant;  for,  in  either  case  the  test  of  interest  is ^^}e^ 
same ;  the  question  being,  whether  a  judgment,  in  favor  of  the 
party  calling  the  witness,  will  procure  a  direct  benefit  to  the  wit- 
^ncss.  Thus,  in  assumpsit,  if  the  non-joinder  of  a  co-contractor  is 
pleaded  in  abatement,  such  person  is  not  a  competent  witness  for 
the  defendant  to  support  the  plea,  unless  he  is  released  ;  for  though 
if  the  defence  succeeds,  the  witness  will  still  be  liable  to  another 
action,  yet  he  has  a  direct  interest  to  defeat  the  present  action, 
both  to  avoid  the  payment  of  costs,  and  also  to  recover  the  costs  of 
vthe  defence.^  The  case  is  the  same,  where,  in  a  defence  upon  the 
merits,  a  witness  is  called  by  the  defendant,  who  is  confessedly,  or 
by  his  own  testimony,  a  co-contractor,  or  i)artner  with  him  in  the 
subject  of  the  action.^     So,  hi  a  suit  against  one  on  a  joint  obliga- 

1  De  Symonds  v.  De  la  Cour,  2  New  the  defonilant.  has  paid  the  loss,  ujotii  an 

Rep.  874.  a<:;reoinent    with    the    assured    that    the 

-Clark  17.  Lucas,  Ry.  &  M.  32.  money  should  be  repaid,  if  lie  failed  to 

8  Hoilsilon  V.  Wilkins,  7  Greenl.  113.  recover   at^ainst   the   otiier   underwriters. 

*  Fotheringhani  v.  Greenwood,  1  8tra.  Forrester  v.  Pigou,  1  M.  &  S.  U;  3  Campb. 

12U ;    Kdiiers    i'.    Turner,   5   West.   Law  380,  s.  c. 
Journ.  40(j.  "^  Young  r.  Bairnor.  1  Esp.  103;  Lef- 

a  The  same  principle  also  applies  where  ferts  >\  De  Mott,  21  Wend.  13i>. 
the  underwriter,  otlered  as  a  witness  for         "  Birt  v.  Wood,  1  Esp.  20 ;  Goodacre 


440  LAW    OF   EVIDENCE.  [PART   III. 

tion,  a  co-obligor,  not  sued,  is  not  a  compeicnt  witness  for  the 
plaintiff,  to  prove  the  execution  of  the  instrument  by  the  defend- 
ant ;  for  he  is  interested  to  relieve  himself  of  part  of  the  debt,  by 
charging  it  on  the  defendant.^  And  upon  a  similar  principle, 
where  an  action  was  brought  upon  a  policy  of  insurance,  averred 
in  the  declaration  .to  have  been  effected  by  the  plaintiffs,  as  agents, 
for  the  use  and  benefit  and  on  the  account  of  a  third  person,  it 
was  held  that  this  third  person  was  not  a  competent  witness  for 
the  [)laiutiffs ;  and  that  his  release  to  the  plaintiffs,  prior  to  the 
action,  of  all  actions,  claims,  &c.,  which  he  might  have  against 
them  by  reason  of  the  policy,  or  for  any  moneys  to  be  recovered 
of  the  underwriters,  did  not  render  him  competent ;  neither  could 
his  assignment  to  them,  after  action  brought,  of  all  his  interest  in 
the  policy,  have  that  effect ;  for  the  action  being  presumed  to  have 
been  brought  by  his  authority,  he  was  still  liable  to  the  attorney 
for  the  costs.2  So,  in  an  action  on  a  joint  and  several  bond  against 
the  surety,  he  cannot  call  the  principal  obligor  to  prove  the  pay- 
ment of  money  by  the  latter  in  satisfaction  of  the  debt ;  for  the 
witness  has  an  interest  in  favor  of  his  surety  to  the  extent  of  the 
costs.^  So,  also,  where  a  legatee  sued  the  executor,  for  the  re- 
covery of  a  specific  legacy,  namely,  a  bond ;  it  was  held,  that  the 
obligor,  having  a  direct  interest  in  preventing  its  l^eing  enforced, 
was  not  a  competent  witness  to  prove  that  the  circumstances, 
under  which  the  bond  was  given,  were  such  as  to  show  that  it  was 
irrecoverable.^ 

y  §  396.  It  may  seem,  at  the  first  view,  that  where  the  .plaintiff 
calls  his  otvn  servant  or  agent  to  prove  an  injury  to  his  property, 
w-hile  in  the  care  and  custody  of  the  servant,  there  could  be  no 
objection  to  the  competency  of  the  witness  to  prove  misconduct  in 

.      the   defendant;    because,  whatever   might  be   the   result   of  the 
action,  the  record  would  be  no  evidence  against  him  in  a  sub- 


\ 


V.  Breame,  Peake's  Cas.  174 ;   Cheyne  v.  quand  v.  Webb,  16  Johns.  89  ;  Purviance 

Koops,  4  Esp.  112;  Evans  v.  Yeatlierd,  2  v.  Dryden,  3  S.  &  R.  402,  407.     And  see 

Bing.    133;    Hall   v.   Cecil,  6  Bhif?.  181;  Latliani  c.  Kenniston,  13  N.  llamp.  K.  203. 

Kussell  V.  Blaku,  2  M,  &  G.  373,  381,  382 ;  '■^  Bell  v.  Smith,  5  B.  &  C.  188. 

Vanzaiit  r.  Kay,  2  Humph.  106, 112.    But  •'^  Townsend  v.  Downing,  5  East,  565, 

this  point  lias  in  some  cases  been  other-  567,  per  Lord  Ellenborough.    In  an  action 

wise  decided.     See  Cossham  v.  Goldney,  against  the  sheritF,  for  a  negligent  escape, 

2  Stark.  K.  413;  Blackett  v.  Weir,  5  B.  &  the  debtor  is  not  acompetent  witness  for 

C.  385.     See  also  Poole  v.  Palmer,  'J  M.  the  defendant,  he  being  hable  over  to  the 

&  W.  71.  defendant    for    the    damages    and   costs. 

1  Marshall  v.  Thraikill,  12  Ohio  R.  275;  Grithu  /'.  Brown,  2  Pick.  304. 

Ripley    v.    Thompson,    12     Moore,    55 ;  *  Davies  v.  Morgan,  1  Beav.  405. 
Browa  v.  Brown,   4   Taunt.  752;    Mar- 


CHAP.  II.]  COMPETENCY   OF  WITNESSES.  441 

sequent  action  hy  the  plaintiff.  But  still  the  witness,  in  such 
case,  is  held  inadmissilile  ;  upon  tlie  general  principle  already 
mentioned,^  in  cases  where  the  master  or  princij)ul  is  defendant, 
namely,  that  a  verdict  for  the  master  would  place  the  servant  or 
agent  in  a  state  of  security  against  any  action,  which,  otherwise, 
the  master  might  bring  against  him ;  to  i)revent  which  he  is 
directly  interested  to  fix  the  liability  on  the  defendant.  Thus,  in 
an  action  for  an  injury  to  the  plaintiff's  cart,  or  C(^ch,  or  horses, 
by  negligently  driWng  against  them,  the  plaintiff's  own  driver  or 
coachman  is  not  a  competent  witness  for  him  without  a  release.^ 
So,  in  an  action  by  the  shipper  of  goods,  on  a  policy  of  insurance, 
the  owner  of  the  ship  is  not  a  competent  witness  for  the  plaintiff 
to  prove  the  seaworthiness  of  the  ship,  he  having  a  direct  interest 
to  exonerate  himself  from  liability  to  an  action  for  the  want  of 
seaworthiness,  if  the  plaintiff  should  fail  to  recover  of  the  under- 
writer.^ The  only  difference  between  the  case  where  the  master 
is  plaintiff  and  where  he  is  defendant,  is  this,  that  in  the  latter 
case  he  might  claim  of  the  servant  both  the  damages  and  costs 
which  he  had  been  compelled  to  pay  ;  but  in  the  former,  he  could 
claim  only  such  damages  as  directly  resulted  from  the  servant's 
misconduct,  of  which  the  costs  of  an  unfounded  suit  of  his  own/' 
would  not  constitute  a  part.*  / 

§  397.  Where  the  interest  of  the  witness  arises  from  lial)ility 
over,  it  is  sufficient  that  he  is  hound  to  indemnify  the  party  calling 
him,  against  the  consequence  of  some  fact  essential  to  the  judg- 
ment. It  is  not  necessary,  that  there  should  be  an  engagement 
to  indemnify  him  generally  against  the  judgment  itself,  though 
this  is  substantially  involved  in  the  other ;  for  a  covenant  of  in- 
demnity against  a  particular  fact,  essential  to  the  judgment,  is  in 
effect  a  covenant  of  indemnity  against  such  a  judgment.  Thus, 
the  warrantor  of  title  to  the  property  which  is  in  controversy  is 

1  -?»/))•(?,§  393.   This  principle  is  applied  v.  Coatsworth,  1  C.  &  P.  G45;   Wake  v. 

to  all  cases'wiiere  the  testimony  of  the  Lock,    5   C.   &  P.   454.     In   Sherman  v. 

witness,  adduced  by  the  plaintitl^  would  Barnes,  1  M.  &  Rob.  tiO,  the  same  point 

discharge  iiim  Irom  the  plaintiff's  demand,  was  so  ruled  by  Tindal,  C.  J.,  upon  the 

by  establishin;^'  it  apiinst  the   defendant,  authority  of  Moorish  r.  Footo.  tliouuh  lie 

Tims,  in  an  action  by  A  against  B  for  the  seems    to   have    thought   otherwise    upon 

board  of  C,  the  latter  is  not  a  comiK'tent  principle,  and  perhaps  with  better  reason, 
witness  for  the  plaintiff  to  jirove  tlie  claim.  ■'  Kotiieroe  v.  Elton,  Peak's  case,  84, 

Enierton  v.  Andrews,  4  Mass.  (153 ;  Hod-  cited  and  approved,  per  Gibbs,  C.  J.,  in  8 

son  V.  Marshall,  7  C.  &  P.  16;   [  infra,  §  Taunt.  A-il. 
411).]                                                       "  *  Per  Tindal,  C.  J.,inFaucourt  I?.  Bull, 

■^  Miller  v.  Falconer,  1   Campb.  2-51 ;  1  Bing.  n.  c.  G81,  688. 
Moorish  V.  Foote,  8  Taunt.  454 ;  Kerrison 


442  LAW   OF   EVIDENCE.  [PART  III. 

generally  incompetent  as  a  witness  for  his  vendee,  in  an  action 
concerning  the  title.  And  it  makes  no  difference  in  what  manner 
the  liability  arises,  nor  whether  the  property  is  real  or  personal 
estate.  If  the  title  is  in  controversy,  the  person  who  is  bound  to 
make  it  good  to  one  of  the  litigating  parties  against  the  claim  of 
the  other  is  identified  in  interest  with  that  party,  and  therefore 
cannot  testify  in  his  favor.^  And  if  the  quality  or  soundness  is 
the  subject  of  (dispute,  and  the  vendee  with  warranty  has  resold  the 
article  with  similar  warranty,  the  j)rinciple  is  still  the  same.  If 
the  etfect  of  the  judgment  is  certainly  to  render  him  lialjle,  though 
it  be  only  for  costs,  he  is  incompetent ;  ^  but  if  it  is  only  to  render 
it  more  or  less  probable  that  he  will  be  prosecuted,  the  objection 
goes  only  to  his  credibility.  But  whatever  the  case  may  be,  his 
liability  must  be  direct  and  immediate  to  the  party  calling  him, 
and  not  circuitous  and  to  some  other  person,  as,  if  a  remote  vendor 
with  warranty  is  called  by  the  defendant  as  a  witness,  where  the 
article  has  been  successively  sold  by  several  persons  with  the  same 
warranty,  before  it  came  to  the  defendant.^ 

§-398.  In  order  to  render  the  witness  liable,  and  therefore 
incompetent,  as  warrantor  of  the  title,  it  is  not  necessary  to  show 
an  express  contract  to  that  effect ;  for  an  implied  warranty  is 
equally  binding.     Thus,  the  vendor  of  goods,  having  possession 


1  Serle  v.  Serle,  2  Roll.  Ahr.  G8o;  21  called  liis  vendor,  who  had  given  a  siini- 
Vin.  Abr.  ^02,  tit.  Trial,  G.  f.  pi.  1 ;  Steers  lar  warranty,  Lord  Tentcrden,  after  ex- 
V.  Cawardiue,  8  C.  &  P.  570.  But  if  the  amining  authorities,  admitted  the  witness, 
vendor  sold  without  any  covenant  of  title,  A  vendor  was  admitted,  under  similar  cir- 
or  with  a  covenant  restricted  to  claims  set  cumstances,  b}'  Lord  Alvanley,  in  Briggs 
up  under  the  vendor  himself  alone,  the  v.  Crick,  5  Esp.  'J9.  But  in  neither  of 
vendor  is  a  competent  witness  for  his  ven-  these  cases  does  it  appear  that  the  witness 
dee.  Busby  v.  Greenslate,  1  Stra.  445 ;  had  been  called  upon  to  detlend  the  suit. 
T\vanil)ly  v.  Henley,  4  Mass.  441 ;  Beidel-  In  the  still  more  recent  case  of  Bliss  v. 
man  v.  Foulk,  5  Watts,  o08;  Adams  v.  Mountain,  1  M.  &  Bob.  802,  after  an  ex- 
Cuddy,  13  Pick.  460  ;  Bridge  v.  Eggleston,  amination  of  various  autlu)rities,  Alderson, 
14  Mass.  245;  Davis  v.  Spooner,  '6  Tick.  J.,  held  the  vendor  incompetent,  on  the 
284;  Lathrop  v.  Muzzy,  5  Greeul.  450.  ground  that  the  etfect  of  the  judgment  for 

2  Lewis  u.  Beake,  7  Taunt.  158.  In  tlie  defendant  would  be  to  relieve  the  wit- 
this  ease  the  buyer  of  a  horse  with  war-  ness  from  an  action  at  his  suit. 

ranty  resold  him  with  a  similar  warranty,  -^  Clark  v.  Lucas,  By.  &  M.  82;  1  C.  & 
and,  being  sued  thereon,  he  gave  notice  P.  156 ;  Briggs  v.  Crick,  5  Esp.  99 ;  Mar- 
of  the  action  to  his  vendor,  offering  him  tin  v.  Kelly,  1  Stew.  Ala.  R.  198.  Where 
the  option  of  defending  it;  to  which  hav-  the  plaintiff's  goods  were  on  the  wagon 
ing  received  no  answer,  he  defended  it  of  a  carrier,  whicli  was  driven  l)y  the  car- 
himself,  and  failetl ;  it  was  holden,  that  lie  rier's  servant;  and  the  goods  were  alleged 
was  entitled  to  recover  of  his  vendor  the  to  bu  injured  by  reason  of  a  defect  in  the 
costs  of  defending  that  action,  as  part  of  highway ;  it  was  held,  in  an  action  against 
the  damages  he  had  sustained  by  the  false  the  town  for  this  defect,  that  the  carrier's 
warranty.  In  tlie  later  case  of  Baldwin  v.  servant  was  a  coiupetent  witness  for  the 
Dixon,  1  M.  &  Rob.  59,  where  the  defend-  owner  of  the  goods.  Littlefield  v.  Port- 
ant,  in  an  action  ou  a  wiuranty  of  a  iiorse,  land,  13  Shepl.  37. 


CHAP.  II.] 


COMPETENCY   OF   WITNESSES. 


4-13 


and  selling  them  as  liis  own,  is  held  bound  in  law,  to  warrant  the 
title  to  the  vendee;^  and  therefore  he  is  generally  not  competent 
as  a  witness  for  the  vendee  in  support  of  the  title.^  This  implied 
warranty  of  title,  however,  in  the  case  of  sales  by  sheriffs,  execu- 
tors, administrators,  and  other  trustees,  is  understood  to  extend 
no  farther  than  this,  that  they  do  not  know  of  any  infirmity  in 
their  title  to  sell  in  such  capacity,  and  therefore  they  are  in  general 
comi»etent  witnesses.^ 

§  399. -In  regard  to  parties  to  hills  of  exchange  and  negotiable 
promissory  notes,  we  have  already  seen  that  the  persons  who  have 
put  them  into  circulation  by  indorsement  are  sometimes  held 
incompetent  witnesses,  to  prove  them  originally  void.*  But,  sub- 
ject to  this  exception,  which  is  maintained  on  grounds  of  public 
policy,  and  of  the  interest  of  trade,  and  the  necessity  of  confidence 
in  commercial  transactions,  and  which,  moreover,  is  not  every- 
where conceded,  parties  to  these  instruments  are  admitted  or 
rejected,  in  suits  between  other  parties,  like  any  other  witnesses, 
according  as  they  are  interested  or  not  in  the  event  of  the  suit. 
In  general,  their  interest  will  be  found  to  be  equal  on  both  sides ; 
and  in  all  cases  of  balanced  interest,  the  witness,  as  we  shall  here- 
after see,  is  admissible.^    Thus,  in  an  action  against  one  of  several 


1  2  Bl.  Comm.  451.  See  also  2  Kent, 
Coinin.  478,  and  cases  there  cited.  See 
al.-io  Emerson  v.  Brigham,  10  Mass.  203 
(Hand's  edit.),  note. 

-  Heermance  v.  Vernoy,  6  Joluis.  5  ; 
Halo  r.  Sniitli,  G  Greenl.  416;  Baxter  v. 
Graham,  5  Watts,  418.  In  the  general 
doctrine,  stated  in  the  text,  that  where  the 
vendor  is  liable  over,  though  it  be  only 
for  costs,  he  is  not  a  competent  witness 
for  tiie  vendee,  the  English  and  American 
decisions  agree.  And  it  is  believed  that" 
the  weight  of  English  authority  is  on  the 
side  of  the  American  doctrine,  as  stated 
in  the  text,  namely,  that  the  vendor  in 
possession  stipulates  that  his  title  is  good. 
But  where  the  witness  claims  to  have  de- 
rived ti-om  the  jdaintitf  the  same  title 
which  he  conveyed  to  the  defendant,  and 
so  is  accountable  for  the  value  to  the  one 
]iarty  or  the  other,  in  either  event  of  the 
suit,  unless  he  can  discharge  himself  by 
other  proof,  he  is  a  competent  witness  for 
the  defendant ;  miless  be  has  so  conducted 
as  to  render  himself  accountable  to  the 
latter  for  the  costs  of  the  suit,  as  part  of 
the  damages  to  be  recovered  against  liim. 
Tlius,  where  in  trover  for  a  horse,  the  de- 
fendant called  his  vendor  to  prove  that  the 
horse  was  pledged  to  him  for  a  debt  due 


from  the  plaintiff,  with  authority  to  sell 
him  after  a  certain  day,  and  that  he  sold 
him  accordingly  to  the  defendant ;  he  was 
held  a  competent  witness.  Nix  v.  Cut- 
ting, 4  Taunt.  18.  So,  in  (Uisnmpsit,  for 
the  price  of  wine  sold  to  the  defendant, 
where  the  defence  was,  that  he  bouglit  it 
of  one  Faircloth,  and  not  of  the  plaintiff, 
Faircloth  was  held  a  competent  witness 
for  the  defendant  to  prove  that  he  himself 
purchased  the  wine  of  the  phiintiif,  and 
sold  it  to  the  defendant,  wlio  had  paid  him 
the  pri(;e.  Labalastier  r.  Clark.  I  B.  >*c 
Ad.  i<W.  So,  the  defendant's  vendor  has 
been  held  competent,  in  trover,  to  prove 
that  the  goods  were  his  own,  and  bad 
been  fraiulnlently  taken  from  him  by  tbo 
plaintiff.  Ward  i\  Wilkinson,  4  B.  &'Ald. 
410,  where  Nix  v.  Cutting  is  exi)lained  by 
llolroyd,  J.  See  also  Baldwin  r.  Dixon, 
1  M.  &  Bob.  50 ;  Briggs  v.  Crick,  5  I-'sp. 
00,  and  Mr.  Starkie's  observations  on 
some  of  these  cases ;  1  Stark.  Evid.  109, 
note  (n) ;  2  Stark.  Evid.  804,  note  (d). 

8  I'eto  r.  Blades,  5  Taunt.  057  :  ^Nlock- 
bee  V.  Gardiner,  2  Har.  &  CJill,  I7t^ ; 
Tetermans  v.  Laws,  6  Leigh's  11.  523,  520. 

■*  S'lpra,  §§  384,  385. 

5  In/ru,  §  420. 


444  LAW   OF    EVIDENCE.  [PART  III. 

makers  of  a  note,  anotlicr  maker  is  a  competent  witness  for  the 
plaintiff,  as  he  stands  indifferent;  for  if  the  plaintiff  shouhl  recover 
in  that  action,  tlie  witness  will  ])C  liable  to  pay  his  contrilmtory 
share ;  and  if  the  plaintiff  shonld  fail  in  that  action,  and  force  the 
witness  to  pay  the  whole,  in  another  suit,  he  will  still  he  entitled 
to  contribution.^  So,  in  an  action  against  the  acceptor  of  a  bill, 
the  drawer  is  in  general  a  competent  witness  for  either  party ;  for 
if  the  plaintiff  recovers,  the  witness  pays  the  bill  by  the  hands  of 
/  the  acceptor ;  if  not,  he  is  liable  to  pay  it  himself.  ^  And  in  an 
action  by  the  indorsee  of  a  note  against  the  indorger,  the  maker  is 

v        a  competent  witness  for  the  plaintiff;    for  if  the  plaintiff  prevails, 
^    the  ^^^tness  ■will  be  liable  to  pay  the  note  to  the  defendant ;  and  if 
the  defendant  prevails,  the  witness  will  be  liable,  to  the  same 
I  extent,  to  the  plaintiff.  ^ 

/  §  400.  And  though  the  testimony  of  the  witness,  by  defeating 
the  present  action  on  the  bill  or  noto,-mai/  j^robably  deter  the  holder 
from  proceeding  in  another  action  against  the  witness,  yet  this  only 
affords  matter  of  observation  to  the  jury,  as  to  the  credit  to  be  given 
to  his  testimony.  Thus,  in  an  action  by  the  indorsee  of  a  note 
against  the  indorser,  the  maker  is  a  competent  witness  for  the 
defendant,  to  prove  that  the  date  has  been  altered.*  And  in  an 
action  by  the  indorsee  of  a  bill  against  the  drawer  or  acceptor,  an 

'  indorser  is,  in  general,  a  competent  witness  for  either  party ;  for 
the  plaintiff,  because,  though  his  success  mai/  prevent  him  from 
calling  on  the  indors.er,  it  is  not  certain  that  it  will ;  and  whatever 
part  of  the  bill  or  note  he  may  be  compelled  to  pay,  he  may  recover 
again  of  the  drawer  or  acceptor ;  and  he  is  competent  fur  the  de- 
fendant, because  if  the  plaintiff  fails  against  the  drawer  or  acceptor, 
he  is  driven  either  to  sue  the  indorser  or  abandon  his  claini.^ 

§  401.  But  if  the  verdict  would  necessarily  benefit  or  affect  the 
witness,  as  if  he  would  be  liable,  in  one  event,  to  the  costs  of  the 


1  York  V.  lilott,  5  M.  &  S.  71.  Helms  »  Venning  v.  Shuttlcworth,  Bayley  on 
also  been  held  admissible  for  the  defend-  Bills,  p.  5U3  ;  Ilubbly  v.  Brown,  16  Johns. 
ant.  Thompson  v.  Armstrong,  5  Ala.  70.  But  the  maker  of  an  accommodation 
383.  But  see  tlie  cases  cited  supra,  §  395,  note,  made  for  his  own  benefit,  is  incom- 
notes,  and  12  Ohio  11.  279.  petent.     Pierce  v.  Butler,  14  Mass.  303, 

2  Dickinson   v.   Prentice,    4   Esp.    32;  31"2 ;  »;/)•«,§  401. 

Lowber  /•.  Shaw,  a  Mason,  241,  per  Story,  *  Levi   v.  Essex,   MSS.,  2  Esp.   Dig. 

J.;    Rich  V.  To])])!!!";,  JVake's  Cas.  224.  708,  per  Lord  Mansfield ;  Chitty  on  Bills, 

But  if  he  is  liable   in  one  event  for  the  p.  Go4,  note  (b),  (Hth  edit.) 
costs,  he  has  an  interest  on  that  side,  and  ^  Baylev  on   Bills,  594,  595  (2d  Am. 

is    inadmissible.     Scott    v.    McLellan,    2  edit.  by'PhiUips  &  Sewall).     And  see  Bay 

Greeul.  199;  aupra,  §  391,  and  note  (3).  v.  Gunn,  1  Deuio,  R.  108. 


CHAP.  II.]  COMPETENCY   OF    WITNESSES.  445 

action,  then,  without  a  release,  which  will  annul  his  interest  in 
the  event,  he  will  not  be  admissible  as  a  witness  on  the  side  of  the 
party  in  whose  favor  he  is  so  interested.  Thus,  the  party  for 
wliosc  use  an  accommodation  note  or  bill  has  been  drawn  or 
accepted,  is  incompetent  as  a  witness,  when  adduced  by  him  who 
has  lent  his  own  name  and  liability  for  the  accommodation  of  the 
witness.^  So,  in  an  action  against  the  drawer  of  a  bill  of  exchange, 
it  has  l)ocn  held,  that  the  acceptor  is  not  a  competent  witness 
for  the  defendant,  to  prove  a  set-off;  because  he  is  interested  in 
lessening  the  balance,  being  answerable  to  the  defendant  only  for 
the  amount  which  the  ])laintiff  may  recover  against  him.^ 

§  402.  Where  a  liahility  to  costs  in  the  suit  arises  in  any  other 
manner,  it  is  still  an  interest  sufficient  to  render  the  witness  in-  ., 
comiietcnt.3  Tims,  where  the  witness  called  by  the  plaintiff  had  |  l 
himself  employed  the  attorney,  to  whom  he  had  made  himself 
lia))le  for  the  costs,  he  wasiield  incompetent,  without  a  release 
from  the  attorney.^  So,  where  he  had  given  the  plaintiff  a  bond 
of  indemnity  against  the  costs  of  the  suit,  he  was  held  incompetent 
as  a  witness  for  the  plaintiff,  as  to  any  point  arising  in  the  action  ; 
even  such  as  the  service  of  a  notice  on  the  defendant,  to  produce 
certain  papers  at  the  trial.^  Thus,  also,  where  an  attorney ,«  or, 
an  executor,'  or  the  tenant,  on  whose  premises  the  goods  of  the 
plaintiff  in  replevin  had  been  distrained  for  rent,^  or  the  principal  in 
an  admiuistration-bond,  the  action  being  only  against  the  surety ,9 
have  been  found  personably  liable  for  the  costs  of  the  suit,  they 
have  been  held  incompetent  as  witnesses  on  the  side  of  the  party 
in  whose  favor  they  were  thus  interested.  But  if  the  contract  of 
indemnity  is  illegal,  as,  for  example,  if  it  be  a  contract  to  bear 

1  Jones  V.  Brooke,  4  Taunt.  403  ;  lected  in  Bnyloy  on  r.ills,  p.  r,9r,-50n  (LVl 
supra,  §  3<.)1,  and  note.  See  al.so  Bottom-  Am.  edit,  by  riiillips  \  s.wnll).  uitli  tlie 
ley  r.  Wilson,  3  Stark.  R.  148;  Ilarnian  notes  of  the  learned  Ldiu.r.^ ;  Uiiity  on 
r.  Lasbrey,  Holt's  Cas.  890;  Edmonds  v.  Bills,  654-GOU  (8th  edit.)  ;  2  Stark.  Lwd. 
Lowe,  8"B.  &  C.  407;  Hall  t;.  Ceeil,  6  179,  182  (Gtli  Am.  edit,  with  Metcalt  s, 
Bing.  181  ;  Scott  v.  McLellan,  2  Greenl.  Ingraham's,  and  Gerhard  s  notes)  ; 
199 ;  Pierce  v.  Butler,  14  Mass.  303,  312 ;  Thayer  v.  Grossman,  1  Metcalt,  K.  4ib. 
Southard  i.'.  Wilson,  8  Shepl.  494.  a  y^e  s«/>m,  §  39o.  o^n     tm 

2  Mainwarinjr   r.  Mvtton,  1  Stark.  R.  *  York  v.  Gribble,  1  Esp.  319;    Mar- 
83.     It  is  deemeil  unnecessary  any  fur-  land  v.  Jefierson,  2  Pick.  240;    Uandley 
ther  to  pursue  this  subject  in  this  place,  v.  Edwards,  1  Curt.  722. 
or  particularly  to  mention  any  of  the  nu-  ^  Butler  v.  Warren,  11  Johns,  oi. 
nierous  cases"  in  which  a  party  to  a  bill  or          "  Chadwick  v.  Upton,  3  Pick.  442. 
note  has  been  held  competent,  or  other-  ''  Parker  r.  Vincent,  3  C.  &  1.38.^ 
wise,  on  the  ground  of  beins;  free  from  ^  Rush  v.  Flickwire,  1-  S.  icK.  b^- 
interest,  or  interested,  under  the  partio-  ^  Owens  i'.  Collinson,  3  (iiU  '^  -'"Ims. 
ular  circumstances  of  the  case.     It  will  2G.     See  also  Cannon  v.  Jones.  4  Hawks, 
suffice  to  refer  the  reader  to  the  cases  col-  308 ;  Riddle  v.  Moss,  7  Cranch,  -06. 

VOL.  I.  38 


'i      i\» 


440  LAW   OF   EVIDENCE.  [PAllT   III. 

each  other  liarmlcss  in  doing  wrong,  it  creates  no  legal  liability 
to  affect  the  witness.^ 

§  403.  This  doctrine  is  applied  in  the  same  manner  in  criminal 
cases,  where  the  witness  has  a  direct,  certain,  and  immediate 
interest  in  the  result  of  the  prosecution.  Thus,  in  cases  of  sum- 
mary convictions,  where  a  penalty  is  imposed  by  statute,  and  the 
whole  or  a  part  is  given  to  the  informer  or  prosecutor,  who  be- 
comes entitled  to  it  forthwith  upon  the  conviction,  he  is  not,  at 
the  common  law,  a  competent  witness  for  the  prosecution.^  So, 
in  a  prosecution  under  the  statutes .  for  forcible  entry,  where  the 
party  injured  is  entitled  to  an  award  of  immediate  restitution  of 
the  lands,  he  is  not  a  competent  witness.^  This  rule,  however, 
is  subject  to  many  exceptions,  which  will  hereafter  be  stated.* 
But  it  may  be  })roper  here  to  remark,  that,  in  general,  where  the 
penalty  or  provision  for  restitution  is  evidently  introduced  for 
tlie  sake  of  the  party  injured,  rather  than  to  insure  the  detection 
and  punishment  of  the  offender,  the  party  is  held  incompetent.^ 

§  404.  Having  thus  briefly  considered  the  subject  of  disqualifi- 
cation, resulting  from  a  direct,  certain,  and  immediate  interest  in 
the  event  of  the  suit,  we  come  now  to  the  second  branch  of  the 
general  rule,  namely,  that  of  interest  in  the  record,  as  an  instrument 
of  evidence  in  some  other  suit,  to  prove  a  fact  therein  alleged. 
The  record  of  a  judgment,  as  hereafter  will  be  seen,  is  always 
admissible,  even  in  an  action  between  strangers,  to  prove  the  fact 
that  such  a  judgment  was  rendered,  and  for  such  a  sum  ;  but  it  is 
not  always  and  in  all  cases  admissible  to  prove  the  truth  of  any 
fact,  on  Avhich  the  judgment  was  founded.  Thus  the  record  of 
a  judgment  against  the  master,  for  tne  negligence  of  his  servant, 
j  would  be  admissible  in  a  subsequent  action  by  the  master  against 
the  servant,  to  prove  the  fact,  that  such  a  judgment  had  been 
recovered  against  the  master  for  such  an  amoiint,  and  upon  such 
and  such  allegations ;  but  not  to  })rove  that  cither  of  those  allega- 
tions was  true  ;  unless  in  certain  cases,  where  the  servant  or  agent 
has  undertaken  the  defence,  or,  being  bound  to  indemnify,  has 

1  ITiinii)liroys  v.  ]\Iillcr,  4  C.  &  P.  7,  subsequent  civil  action,  he  is  not  an  in- 

pcr  Lord  Toiuerden ;  Ilodson  v.  Wilkins,  competent  witness  ni)on  tlie  indictment. 

7  Greenl.  113.  Kex   v.  Luckup,  Willes,  425,  n. ;  0  B.  & 

^  Kex   V.    Williams,  9  B.  &  C.    549 ;  C.  557,  558. 
Commonwealth    v.    Paull,   4   Pick.   251 ;  »  Bex  v.  Bevan,  By.  &  M.  242. 

Rex  V.  Tilley,   1   Stra.  31G  ;  2  Buss,  on  *  See  infra,  §  412. 

Crimes,  601,  602.     But  where  the  penalty  ^  Bex  v.  Williams,  9  B.  &  C.  549,  per 

is   to  be  recovered   by  tlie  witness  in  a  Bayley,  J. 


CHAP.  11.]  COMPETENCY   OF   WITNESSES.  447  v.  .  ^ 

) 

fljecn  duly  required  to  assume  it.  But  under  the  present  liead  arc 
iisuallv  classed  only  those  cases  in  which  the  record  is  adniissihlc 
in  evidence  for  or  against  the  witness,  to  establish  the  facts  therein  i^  ^ 
alleged  or  involved,  in  order  to  acquire  a  benefit  or  repel  a  loss  ;^ 
and  it  is  in  this  view  alone  that  the  subject  will  now  be  con- 
sidered, tii 

§  405.  The  usual  and  clearest  illustration  of  this  branch  of  the 
rule  is  the  case  of  an  action  brought  by  or  against  one  of  several 
persons,  who  claim  a  customary  right  of  common,  or  some  other  - 
species  of  customary  right.  In  general,  in  all  cases  depending  on  rJ 
the  existence  of  a  particular  custom,  a  judgment  establishing  that 
custom  is  evidence,  though  the  parties  are  different.  Therefore,  /  - 
no  person  is  a  competent  witness  in  support  of  such  custom,  who 
would  derive  a  benefit  from  its  establishment ;  because  the  record 
would  be  evidence  for  him  in  another  suit,  in  which  his  own  right 
may  be  controverted.  Thus,  where  the  plaintiff  prescribed  for 
common  of  pasture  upon  Hampton  Common,  as  appurtenant  to  his 
ancient  messuage,  and  charged  the  defendant  with  neglect  to 
repair  the  fence  ;  it  was  held,  that  another  coimnoner,  who  claimed 
a  similar  prescription  in  right  of  another  tenement,  was  not  a 
competent  witness  to  prove  the  charge  ;  ^  and  a  fortiori  he  is  not, 
where  the  prescription  is,  that  all  the  inhabitants  of  the  place  have 
common  there.^  Thus,  also,  an  inhabitant  of  a  town  is  not  a  com- 
petent witness  to  prove  a  prescription  for  all  the  inhabitants  to 
dig  clams  in  a  certain  place;*  nor  to  prove  a  prescriptive  right 
of  way  for  all  the  inhabitants.^  So,  where  the  right  to  a  seat  in 
the  common  council  of  a  borough  was  in  controversy,  and  it  was 
insisted  that  by  prescription  no  person  was  entitled,  unless  he 
was  an  inhabitant  and  also  had  a  burgage  tenure ;  it  was  held, 
that,  though  a  person  having  but  one  of  these  qualifications  was 
a  competent  witness  to  prove  the  prescription,  one  who  had  them 
both  was  not ;  ,for  he  would  thereby  establish  an  exclusive  right 
in  favor  of  himself.^     So,  where  a  corporation  was  lord  of  a  manor, 

1  1  Stark.  Evitl.  114,  115 ;  Hunter  v.  statutes  wliich  rciuler  the  inliabitants  of 

King,  4  B.  &  Aid.  210.  towns    conipeteiit    witnesses,    whore    the 

-  Anseoinb   v.    Shore,    1    Taunt.    261.  corporation  is  a  party,  or  is  interested,  ap- 

See  also  Parker  v.  Mitchell,  11  Ad.  &  El.  ply  only   to  cases  of  corporate  rights  or 

788.  interest,  and    not   to   cases  of  individual 

8  Hockley  r.  Lamb,  1  Ld.  Raym.  731.  and  ]irivate  interest,   thougli   tliese   may 

*  Lufkin    V.    Haskell,    3    Pick.    35ti;  extend   to   every  inhabitant.     See  supra, 

Moore  v.  Griffin,  9  Shepl.  350.     [But  see  §  ool. 
Look  r.  Bradlev,  13  Met.  361),  3T'J.]  *^  Stevenson  v.  Nevinson,  Mayor,  &c., 

6  OiUorne  v.  Wade,  8  Pick.  518.     The  2  Ld.  Kaym.  1353. 


448  LAW   OP   EVIDENCE.  [PART   III. 

and  had  approved  and  leased  a  part  of  the  common,  a  freeman 
-vvas  held  hicompctent  to  prove  that  a  sufficiency  of  common  was 
left  for  tlic  commoners.^  So,  one  who  has  acted  in  breach  of  an 
alleged  custom  by  the  exercise  of  a  particular  trade,  is  not  a  com- 
petent witness  to  disprove  the  existence  of  such  custom.^  Nor  is 
tlie  owner  of  property  within  a  chapelry  a  competent  witness  to 
disprove  an  immemorial  usage,  that  the  land-owners  there  ought 
to  repair  the  cliapel.'^  And  it  is  proper  here  to  add,  that  in  order 
to  exclude  a  witness,  where  the  verdict  depends  on  a  custom, 
which  he  is  interested  to  support,  it  seems  to  be  necessary  that 
the  custom  should  be  stated  on  the  record  ;*  for  it  is  said,  that  the 
effect  of  the  verdict  to  support  the  custom  may  be  aided  by  evi- 
dence.^ 

§  406.  There  are  some  cases,  in  which  the  interest  of  the  wit- 
ness falls  under  both  hrmiches  of  this  rule,  and  in  which  he  has 
been  rejected,  sometimes  on  the  ground  of  immediate  interest  in 
the  event  of  the  suit,  and  sometimes  on  the  ground  of  interest 
in  the  record,  as  an  instrument  of  evidence.  Such  is  the  case  of 
the  tenant  in  possession  in  an  action  of  ejectment ;  who  is  held 
incompetent  either  to  support  his  landlord's  title,^  or,  to  prove 
that  himself,  and  not  the  defendant,  was  the  tenant  in  possession 
of  the  land."  And  where  a  declaration  was  served  on  two  tenants, 
in  possession  of  different  parts  of  the  premises,  and  a  third  person 
entered  into  a  rule  to  defend  alone,  as  landlord,  it  was  held,  that 
neither  of  the  tenants  was  a  competent  witness  for  the  landlord, 
to  prove  an  adverse  possession  by  the  other  of  the  part  held  by 
him ;  for  as  they  were  identified  with  the  landlord  in  interest,  the 
judgment  for  the  plaintiff  would  be  evidence  of  his  title,  in  a 
future  action  against  them  for  the  mesne  profits.^ 

1  Burton  v.  Hinde,  5  T.  E.  174.  it  still  is  not  in  the  United  States,  to  de- 

2  Tlie  Carpenters,  &c.,  of  Shrewsbury  termine  with  precision  in  which  of  these 
V.  Haward   1  Doug.  374.  modes   the  witness  was  interested.     But 


a  llliodes  v.  Ainsworth,  1  B.  &  Aid. 
87.  See  also  Ld.  Falmouth  v.  George,  5 
Bing.  '286. 

•»  Ld.  Falmouth  v.  George,  5  Bing. 
280  ;  Stevenson  v.  Nevinson  et  uL,  2  Ld. 
Kavm.  18;>1. 

»  1  Stark.  Fvid.  115.  note  (c). 

0  Doe  V.  Williams,  Cowp.  021 ;  Bourne 
V.  Turner,  1  Stra.  (JS2. 

■  Doe  V.  Willie,  5  Taunt.  183;  Doe  v. 
Bingham,  4  B.  &  Aid.  072. 

»  Doe  r.  I'reece,  1  Tyrwh.  410.  For- 
merly, it  was  not  material  in  England,  as 


by  Stat.  3  &  4  W.  IV.  c.  42,  §§  26,  27,  the 
objection  arising  from  interest  in  the  rec! 
ord,  as  a  future  instrument  of  evidence,  \m 
done  away ;  the  court  being  directed, 
wiienever  tliis  objection  is  taken,  to  in- 
dorse tlio  name  of  tlie  witness  on  tlie  rec- 
ord or  document  on  which  the  trial  shall 
be  had,  and  of  the  party  on  whose  behalf 
he  was  called  to  testify ;  after  which  the 
verdict  or  judgment  in  that  actiou  shall 
never  be  evidence  for  or  against  the  wit- 
ness, 'or  any  one  claiming  under  him. 
The  practice  under  this  statute  seems  to 


CHAP.  II.]  COMPETENCY   OF   WITNESSES.  449 

§  407.  So,  in  criminal  cases,  a  person  interested  in  the  record 
is  not  a  competent  witness.  Tluis  an  accessory,  whether  before  or 
after  the  fact,  is  not  competent  to  testify  for  the  principal.^  And 
where  several  were  indicted  for  a  conspiracy,  the  wife  of  one  was 
held  not  admissil)le  as  a  witness  .for  the  others ;  a  joint  offence 
being  charged,  and  an  accpiittal  of  all  the  others  l)cing  a  gronnd 
of  discharge  for  her  liu8l)and.'-^  Nor  is  the  wife  of  one  joint  tres- 
passer a  competent  witness  for  another,  even  after  the  case  is 
already  clearly  proved  against  her  husband.^ 

§  408.  The  extent  and  meaning  of  the  rule,  by  which  an  inter- 
ested witness  is  rejected  as  incompetent,  may  be  fnrthcr  ihustrated 
by  reference  to  some  cases,  in  which  the  witness  has  been  deemed 
not  disqualified.  We  have  already  seen  that  mere  wishes  or  bias 
on  the  mind  of  the  witness  in  favor  of  the  party  prodncing  him, 
or  strong  hopes  or  expectations  of  benefit,  or  similarity  of  situa- 
tion, or  any  other  motive,  short  of  an  actnal  and  legal  interest  in 
the  suit,  will  not  disqualify  the  witness.*  Such  circumstances 
may  influence  his  mind,  and  affect  his  opinions,  and  perhaps  may 
tempt  him  at  least  to  give  a  false  color  to  his  statements ;  and 
therefore  they  should  be  carefully  considered  by  the  jury,  in 
determining  the  weight  or  credibility  to  be  given  to  his  testimony  ; 
"but  they  are  not  deemed  sufficient  to  justify  its  utter  exclusion 
from  the  jury.  It  may  now  be  further  observed,  that  a  remote, 
contingent,  and  uncertain  interest,  does  not  disqualify  the  witness. 
Thus,  a  paid  legatee  of  a  specific  sum,  or  of  a  chattel,  is  a  com- 
petent witness  for  the  executor ;  for  though  the  money  paid  to 
a  legatee  may  sometimes  be  recovered  back,  when  necessary  for 
the  payment  of  paramount  claims,  yet  it  is  not  certain  that  it  will 
be  needed  for  such  purpose ;  nor  is  it  certain,  if  the  legacy  has 
not  been  paid,  that  there  arc  not  other  funds  sufiicient  to  pay  it.^ 
So,  also,  a  creditor  of  an  estate,  not  in  a  course  of  liquidation 
as  an  insolvent  estate,  is  a  comjictent  witness  for  the  adminis- 
trator :  for  he  stands  in  the  same  relation  to  the  estate  now,  as  lie 


lie  not  yet  completely   settled;   but   tlie  accessory.      The    People  v.  Lohinan,   'J 

cases  whicli  have  arisen,  and  which  it  is  Barb.  S.  C.  R.  '216. 

deemed  nimecessary  here  to  examine,  are  -  Kex  v.  Locker,  5  Esp.  107  ;  2  Russ. 

stated  and  discussed  in  Phil.  &  Am.  on  on  Crimes,   f'>02 ;   supra,  403;    [Conimon- 

Evid.  pp.  10S-ll;i :  1  Pliil.  Evid.  114-117.  wealtli  v.  Robinson,  1  Gray,  5od.] 

See   also    Poole  v.   Palmer,   y  M.  &  \Y.  »  Ilawkesworth  v.   Showier,  12   M.  & 

71.  W.  4.-^. 

1  1  Stark.  Evid.  130.     But  the  pnnci-  *  Supra,  §§  387,  389. 

pal   is  a  competent   witness   against   the  °  Clarke  r.  Gannon,  Ry.  «Sc  M.  31. 

38* 


450  LAW   OF   EVIDENCE.  [PART   III. 

did  to  the  debtor  in  his  lifetime  ;  and  the  prohability  that  his  tes- 
timony may  be  benelicial  to  himself,  by  increasing  the  fund  out 
of  which  lie  is  to  be  paid,  is  equally  remote  and  contingent  in  both 
cases. ^  It  is  only  where  his  testimony  will  certainly  have  that 
effect,  as  in  the  case  of  a  creditor  to  an  insolvent  estate,  or 
a  residuary  legatee,  or  a  distributee,  that  the  witness  is  rendered 
incompetent.^  Yet  in  these  cases,  and  in  the  case  of  a  creditor 
to  a  bankrupt  estate,  if  the  legatee,  distributee,  or  creditor  has 
assigned  his  interest  to  another  person,  even  equitably,  his  com- 
petency is  restored.^  In  an  action  of  covenant  against  a  lessee, 
for  not  laying  the  stipulated  quantity  of  manure  uj)on  the  land ; 
upon  a  plea  of  performance,  a  sub-lessee  of  the  defendant  is  a 
competent  witness  for  him,  to  support  the  plea ;  ^  for  it  does  not 
appear  that  he  is  under  the  like  duty  to  the  defendant,  or  that 
a  recovery  by  the  latter  would  place  the  witness  in  a  state  of 
security  against  a  similar  action.^  Upon  the  same  principle,  a 
defendant  against  whom  a  civil  action  is  pending  is  a  competent 
witaiess  for  the  government  on  the  trial  of  an  indictment  for  per- 
jury, against  one  who  has  been  summoned  as  a  witness  for  the 
plaintiff  in  the  ci\-il  action.^ 

§  400.  Thus,  also,  the  tenant  in  possession  is  a  competent  wit- 
ness to  support  an  action  on  the  case,  brought  by  tlie  reversioner, 
for  an  injury  done  to  the  inheritance.''"  So,  in  an  action  against 
an  administrator  for  a  debt  due  l)y  the  intestate,  a  surety  in  the 
administrator's  bond  in  the  Ecclesiastical  court  is  a  competent 
witness  for  him,  to  prove  a  tender ;  for  it  is  but  a  bare  possibility 
that  an  action  may  be  brought  upon  the  bond.^  80,  in  an  action 
against  a  debtor,  who  pleads  the  insolvent  debtor's  act  in  discharge, 
another  creditor  is  a  competent  witness  for  the  plaintiff,  to  prove 
that,  in  fact,  the  defendant  is  not  within  the  operation  of  the  act.^ 
An  executor  or  trustee  under  a  will,  taking  no  benelicial  interest 


1  Paull  r.  Brown,  6  Esp.  34 ;  Davies  v.         6  Hart's  case,  2  Rob.  Virg.  Rep.  819. 
Davics,   1   Mootl.  &  M.   345;    Carter  r.         "  Doddington  !•.  Hudson,  1  Bing.  257; 

I'kti'c.  I  T.  H.  li'.4.     An  annuitant  under  [Schnable   r.   Koeldcr,    28    Ponn.    St.  U. 

tlie  will  is  also  a  fonipetcnt  witness  for  the  181.]     AVlierc  tlic  del'onee  rested  on  sev- 

cxecutor,  in  an  action  against  him  for  the  eral   cognizances,   it    was   held,   that   the 

ilebt  of  tiie  testator.     Nowell  v.  Davies,  5  person  under  whom   one    of  the    cogni- 

B.  &  Ad.  BtJH.  zancos  was  made,  was  competent  to  prove 

-  Suimi,  §  302.  maltLTs  distinct.from  and  independent  of 

8  Heath  r.  Hall,  4  Taunt.  320;  Boyu-  that   particular   cognizance.      Walker    v. 

ton  V.  Turner,  13  Mass.  S'.U.  Giles,  2  C   &  K.  G71. 

*  Wishaw  r.  Barnes,  1  Campb.  341  ^  Carter  v.  Pierce,  1  T.  R.  1G3. 

6  ;Siii>ra,  §  394.  ^  Norcott  i-.  Orcott,  1  Stra.  050. 


CHAP.  II.]  COMPETENCY    OF   WITNESSES.  451 

under  the  will,  is  a  good  attesting  witness.^  And  in  an  action 
against  an  administrator  upon  a  bond  of  the  intestate,  and  a  plea 
of  plcne  administravit  by  the  payment  of  another  bond  debt,  the 
obligee  in  the  latter  bond  is  a  competent  witness  to  support  the 
plea.2  A  trespasser,  not  sued,  is  a  comi)ctent  witness  for  the  plain- 
tiff, against  his  co-trespasser.'^  In  a  qui  tarn  action,  for  the  penalty 
for  taking  excessive  usury,  the  borrower  of  the  money  is*  a  com- 
petent witness  for  the  plaintitf.*  A  person  who  has  been  arrested 
on  mesne  process  and  suffered  to  escape,  is  a  competent  witness 
for  the  plaintiff,  in  an  action  against  the  sheriff  for  the  escape  ',^ 
for  though  the  whole  debt  may  be  recovered  against  the  sheriff, 
yet,  iu  an  action  on  the  judgment  against  the  original  debtor,  the 
latter  can  neither  plead  in  bar,  nor  give  in  evidence,  in  mitigation 
of  damages,  the  judgment  recovered  against  the  sheriff.  And  one 
\\\\o  has  been  rescued  is  a  competont  witness  for  the  defendant,  in 
au  action  against  him  for  the  rescue.^  So,  a  mariner,  entitled  to 
a  share  in  a  prize,  is  a  competent  witness  for  the  captain  in  an 
action  brought  by  him  for  part  of  the  goods  taken."  In  all  these 
cases,  it  is  obvious  that  whatever  interest  the  witness  might  have, 
it  was  merely  contingent  and  remote ;  and,  on  this  ground,  the 
objection  has  been  held  to  go  only  to  his  credibility. 

§  410.  It  is  hardly  necessary  to  observe  that,  where  a  witness  is 
produced  to  testily  against  his  interest,  the  rule,  that  interest  dis- 
qualifies, does  not  apply,  and  the  witness  is  competent. 

§  411.  The  general  rule,  that  a  witness  interested  in  the  subject 
of  the  suit,  or  in  the  record,  is  not  comijctent  to  testify  on  the 
side  of  his  mterest,  having  been  thus  stated  and  explained,  it 
remains  for  us  to  consider  some  of  the  eoceeptions  to   the   rule, 

1  Phipps  V.  Pitcher,  6  Taunt.  220  ;  ^  RuH.  jj.  p.  143 ;  1  Ld.  Eaym.  745. 
Comstock  V.  riatllvme,  8  Conn.  K.  2-34.  ^  ;\i„rris  v.  Daubigny,  5  Moore,  310. 
In  }[aAmrhusett!<,  tJie  execntor  has  been  In  an  action  against  the  printer  of  a  news- 
held  incompetent  to  prove  the  will  in  the  paper  lor  a  libel,  a  proprietor  of  the  paper 
court  of  Probate,  he  beinp:  party  to  is  a  competent  witness,  as  he  is  not  liable 
the  proceed in;j:s,  and  liable  to"  the  co'st  of  to  contribution.  Moscati  v.  Lawson,  7  C. 
tlie  trial.     Sears  v.  Dillingham,  12  JMass.  &  P.  52. 

858.     But  the  will  may  be  proved  by  the  *  Smith  v.  Prager,  7  T.  E.  60. 

testimony  of  tlie  other  witnesses,  he  hav-  ^  Cass  v.  Cameron,  Peakc's  Cas.  124 ; 

in<r  been'a  competent  witness  at  the  time  Hunter  v.  Kin.ir,  4  B.  &  Aid.  210.     If  the 

of  attestation.      Ibid.      Generally  speak-  escape   was   committed  while  the  debtor 

ing,  any  trustee  may  be  a  witness,  if  he  was  at  large,  under  a  bond  for  the  prison 

lias  no  "interest  in  the  matter.;    but  not  liberties,   the  jailer,  who   took  the  bond, 

otherwise.     Main  c.  Newson,  Anthon,  11 ;  is   a    competent   witness   for  the   sheritl". 

Johnson    v.    CiinninuHiam,    1    Ala.    24'J  ;  Stewart  r.  Kip,  5  Johns.  256. 

Geors^e  v.   Kimball.  24   Pick.  234 ;    Nor-  "^  Wilson  r.  Gary,  6  Mod.  211. 

woodr.  Morrow,  4  Dev.  &  Bat.  442.  '  Anou.  Skin.  403. 


452  LAW   OF   EVIDENCE.  [PART   III. 

which,  for  various  reasons,  have  Ijccn  allowed.  These  exceptions 
chiefly  prevail  eitlier  in  criminal  cases,  or  in  the  affairs  of  trade 
and  commerce,  and  are  admitted  on  grounds  of  puhlic  necessity  and 
convenience,  and  to  prevent  a  failure  of  justice.  They  may  be 
conveniently  classed  thus :  (1.)  Where  the  witness,  in  a  criminal 
case,  is  entitled  to  a  reward,  upon  conviction  of  the  offender ;  — 
(^2.)  Where,  being  otherwise  interested,  he  is  made  competent  by 
statute ;  —  (3.)  The  case  of  agents,  carriers,  factors,  brokers,  or 
servants,  when  called  to  prove  acts  done  for  their  principals,  in  the 
course  of  their  employment ;  and  —  (4.)  The  case  of  a  witness, 
whose  interest  has  been  acquired  after  the  party  had  become  en- 
titled to  his  testimony.  To  these  a  few  others  may  be  added,  not 
falling  under  either  of  these  heads. 

§  412.  And  in  the  first  i:>lace^  it  is  to  be  observed,  that  the  cir- 
cumstance tliat  a  witness  for  tlie  prosecution  will  be  entitled  to 
a  reward  from  the  goveiviment  upon  conviction  of  the  offender,  or  to 
a  restoration,  as  owner  of  the  property  stolen,  or  to  a  portion  of 
the  fine  or  penalty  inflicted,  is  not  admitted  as  a  valid  objection  to 
his  competency.  By  the  very  statute,  conferring  a  benefit  upon 
a  person,  who,  but  for  that  benefit,  would  have  been  a  witness,  his 
competency  is  virtually  continued,  and  he  is  as  much  a  witness 
after  that  benefit,  as  he  would  have  been  before.  The  case  is  clear 
upon  grounds  of  public  policy,  with  a  view  to  the  public  interest, 
and  because  of  the  principle  on  which  rewards  are  given.  The 
public  has  an  interest  in  the  suppression  of  crime,  and  the  convic- 
tion of  criminals;  it  is  with  a  view  to  stir  up  greater  vigilance  in 
apprehending,  that  rewards  are  given ;  and  it  would  defeat  the 
object  of  the  legislature,  to  narrow  the  means  of  conviction,  by 
means  of  those  rewards,  and  to  exchide  testimony,  which  otherwise 
would  have  been  admissible.^  Tlic  distinction  between  these  ex- 
cepted cases,  and  those  which  fall  under  the  general  rule,  is,  that 
in  the  latter,  the  benefit  resulting  to  the  witness  is  created  chiefly 
for  his  own  sake,  and  not  for  public  purposes.  Such  is  the  case  of 
certain  summary  convictions  heretofore  mentioned.^  But  whore  it 
is  plain,  that  the  infliction  of  a  fine  or  penalty  is  intended  as  a 
])unisliment,  in  furtherance  of  public  justice,  rather  than  as  an 
indemnity  to  the  party  injured,  and  that  the  detection  and  con- 

1  r.ex  V.  Williams,  9  B.  &  C.  549,  556,  per  Bavlcv,  J.  See  also  1  Gilb.  Evid.  by 
Lofft,  245-250. 

2  Supra,  §  403. 


CHAP.  II.]  COMPETENCY   OP   WITNESSES.  453 

victioii  of  the  offender  arc  the  o1  ejects  of  the  legislature,  tlic  case 
will  be  within  the  exception,  and  the  person  benefited  by  the  con- 
viction will,  notwithstanding  his  interest,  be  competent.^  If  the 
reward  to  which  the  witness  will  be  entitled  has  been  offered  hy 
a  private  individual,  the  rule  is  the  same,  the  witness  being  still 
competent ;  but  the  principle  on  which  it  stands  is  different ; 
namely,  this,  that  the  public  have  an  interest  upon  public  grounds, 
in  the  testimony  of  every  person  who  knows  any  thing  as  to  a  crime  ; 
and  that  nothing  which  private  individuals  can  do  will  take  awny 
the  public  right.^  The  interest,  also,  of  the  witness  is  contingent ; 
and,  after  all,  he  may  not  become  entitled  to  the  reward. 

§  413.  The  reason  of  this  exception  extends  to,  and  accordingly 
it  has  been  held  to  include,  the  cases  where,  instead  of  a  pecuniary 
reward,  a  pardon  or  exemption  from  prosecution  is  offered  by  statute 
to  any  person  participating  in  a  particular  offence,  provided  another 
of  the  parties  should  be  convicted  upon  his  evidence.  In  such 
cases.  Lord  Ellenborough  remarked,  that  the  statute  gave  a  parlia- 
mentary capacitation  to  the  witness,  notwithstanding  his  interest 
in  the  cause ;  for  it  was  not  probable  that  the  legislature  would 
intend  to  discharge  one  offender,  upon  his  discovering  another,  so 
that  the  latter  might  be  convicted  without  intending  that  the  dis- 
coverer should  be  a  competent  witness.^ 

§  414.  And  in  like  manner,  where  the  witness  will  directly 
derive  ant/  other  benefit  from  the  conviction  of  the  offender,  he  is 
still  a  competent  witness  for  the  government,  in  the  cases  already 
mentioned.  Formerly,  indeed,  it  was  held  that  tho  jyeison  u'lioae 
name  was  alleged  to  be  forged,  was  not  admissible  as  a  witness 
against  the  prisoner,  on  an  indictmemt  for  the  forgery,  upon  the 
notion  that  the  prosecution  was  in  the  nature  of  a  jtroceeding  in 
rem,  and  tliat  the  conviction  warranted  a  judicial  cancellation  of 
the  instrument.  And  the  prosecutor  in  an  indictment  for  perjury 
has  been  thought  incompetent,  where  he  had  a  suit  pending,  in 

^  Eex  V.  "Williams,  9  B.  &  C.  549,  5G0,  Moulton,  9  Mass.  30;  Rex  v.  Teasclale,  .S 

per  Bayley,  J.     See  also  the  ciise  of  the  Esp.  G8,  and  the  cases  cited  in  JMr.  Day's 

Kioters,  1  Leach,  Cr.  Cas.  358,  note  (a),  note;    yalisbury  v.   Connecticut,  6  Conn, 

where  the  general  question  of  the  aduiis-  101. 

sibility  of  witnesses,  to  whom  a  reward  ^  9  B.  &  C.  55(5,  per  Bayley,  J. 

was  otfered  by  the  government,  being  sub-  ^  lleward  v.  Shipley,  4  Kast,  180,  18.?. 

luitted  to  the  twelve  judges,  was  resolved  See  also  Hex  v.  Rudd,'l  Leach,  Cr.  Cas. 

in   the  affirmative.      McNally's  Evid.  p.  151,    1515-158;    Bush    v.    Railing,   Sayer, 

61,   Rule  12;   United   States  v.  Murphy,  289;  Mead  <;.  Robinson,  Willes,  422;  Sut- 

16  Peters,  R.  203  ;  United  States  v.  Wil-  ton  v.  Bishop,  4  Burr.  2283. 
son,    1    Baldw.    99;     Commonwealth   v. 


454  LAW    OF   EVIDENCE.  [PART   III. 

winch  the  person  prosecuted  was  a  material  witness  against  him, 
or  was  defendant  against  him  in  a  suit  in  equity,  in  which  his 
answer  might  be  evidence^  But  this  opinion  as  to  cases  of  perjury 
has  since  been  cx])lodcd ;  and  the  party  is,  in  all  such  cases,  held 
admissible  as  a  witness,  his  credibility  being  left  to  the  jury.  For 
wherever  the  party  offers  as  evidence,  even  to  a  collateral  point, 
a  record  which  has  been  obtained  on  his  own  testimony,  it  is  not 
i  admitted ;  and  moreover,  the  record  in  a  criminal  prosecution  is 
;  generally  not  evidence  of  the  facts  in  a  civil  suit,  the  parties  not 
being  the  same.^  And  as  to  the  person  whose  name  has  been 
forged,  the  unsoundness  of  the  rule,  by  which  he  was  held  incom- 
petent, was  tacitly  conceded  in  several  of  the  more  recent  cases, 
which  were  held  not  to  be  within  the  rule ;  and  at  length  it  was 
repealed  in  England  by  an  express  statute,^  which  renders  the 
party  injured  a  competent  witness  in  all  criminal  prosecutions  for 
forgery.  In  America,  though  in  some  of  the  earlier  cases,  the  old 
English  rule  of  exclusion  was  followed,  yet  the  weight  of  authority, 
including  the  later  decisions,  is  quite  the  other  way,  and  the  wit- 
ness is  now  almost  universally  held  admissible.^ 

§  415.  The  second  class  of  cases,  in  which  the  general  rule  of 
incompetency  Ijy  reason  of  interest  docs  not  apply,  consists  of  ex- 
ceptions created  ))y  exp^^ess  statutes,  and  which  otherwise  would 
not  fall  within  the  reason  of  the  first  exception.  Of  this  sort  are 
cases,  where  the  informer  and  prosecutor,  in  divers  summary  con- 
victions and  trials  for  petty  offences,  is,  by  the  statutes  of  different 
states,  expressly  made  a  competent  witness,  notwithstanding  his 
interest  in  the  fine  or  forfeiture ;  but  of  which  the  plan  of  this 
Treatise  does  not  require  a  particular  enumeration. 

1  Gilb.  Evid.  by  Lofft,  pp.  33,  34  ;  Bull,  indictment.     Rex  ?'.  Hiilme,  7  C.  &  P.  8. 

N.  P.  232,  245;  Kex  v.  Boston,  4  East,  Jint  fj mere,  and  see  Hex  v.  Boston,  4  East, 

572;    Abrahams   v.   Bunn,  4  Burr.  2251.  572;    supra,   §   3(j2.      In   several   of  tlie 

See  furtlier,  infm,  §  537.  United  States,  the  party  injm-ed,  or  in- 

-  'J  Geo.  IV.,  c.  32.  tended  to  be  injured,  or  entitled  to  satis- 

■'  Kespublica  v.  Keating,  1  Dall.  110;  'faction  for  the  injury,  or  liable  to  pay  the 

Pennsylvania  v.  Parrel,  Addis.  246 ;  The  costs   of  the   prosecution,   is    by   statute 

I'eople  V.  Howell,  4  Johns.  2'.if),  3()2  ;  The  made  a  conii)etent  witness  upon  a  criminal 

People  V.  ]3ean,  0  Cowen,  27 ;  Common-  prosecution  for  the  oflence.     See  Missouri 

wealth  V.  Frost,  5  Mass.  53;    Common-  Rev.   Stat.  1845,   ch.  138,  §  22;    Illinois 

wealth  V.   Waite,  Id.  261 ;    The  State  v.  Rev.  Stat.  1833,  Crim.  Code,  §§  154,  16U, 

Stanton,  1  Iredell,  424;   Simmons  r.  The  pp.  208,  212;  California  Rev.  Stat.  1850, 

State,  7  llain.  11(5.     Lord  Denman  is  re-  ch.  'Jit,  §  13.     In  S'cw  ffamjisliire,  no  per- 

ported  to  iiave  ruled,  at  nisi  j>rius,  that  son  is  disqualified  as  a  witness  in  a  crim- 

where   the   prosecutor,  in  an  indictment  inal  prosecution  by   reason    of   interest, 

for   perjury,  expected   tluvt   the   prisoner  "except    tlie    respondent."      Rev.    Stat, 

would  be  called  as  a  witness  against  him  1842,  ch.  225,  §  17.     As  to  the  mode  of 

in  a  civil  action  about  to  be  tried,  he  was  examining  the  prosecutor,  in  a  trial  lor 

incompetent  as  a  witness  to  support  tlie  forgery,  see  j>ost,  vol.  3,  §  100,  n. 


CHAP.  II.]  COMPETENCY   OF   WITNESSES.  455 

§  416.  The  third  class  of  cases,  excepted  out  of  the  general  rule, 
is  that  of  agents,  carriers,  factors,  brokers,  and  other  servants,  when 
offbred  to  prove  the  making  of  contracts,  the  receipt  or  payment 
of  money,  the  receipt  or  delivery  of  goods  and  other  acts  done 
within  the  scope  of  their  employment.  This  exception  has  its 
foundation  in  public  convenience  and  necessity ;  ^  for  otherwise, 
affairs  of  daily  and  ordinary  occurrence  could  not  be  proved,  and 
tlie  freedom  of  trade  and  commercial  intercourse  would  be  incon- 
veniently restrained.  And  it  extends,  in  principle,  to  every  spe- 
cies of  agency  or  intervention,  by  which  business  is  transacted ; 
unless  the  case  is  overborne  by  some  other  rule.  Thus,  where 
the  acceptor  of  a  bill  of  exchange  was  also  the  agent  of  the  de- 
fendant, who  was  both  drawer  and  indorser,  he  was  held  incom- 
petent in  an  action  by  the  indorsee,  to  prove  the  terms  on  which 
he  negotiated  the  bill  to  the  indorsee,  in  order  to  defeat  the  action, 
though  the  facts  occurred  in  the  course  of  his  agency  for  the 
defendant,  for  whose  use  the  bill  was  negotiated  ;  it  being  apparent 
that  the  witness  was  interested  in  the  costs  of  the  suit.^  But  in 
cases  not  thus  controlled  by  other  rules,  the  constant  course  is  to 
admit  the  witness,  notwithstanding  his  apparent  interest  in  the 
event  of  the  suit.^  Thus,  a  porter,  a  journeyman,  or  salesman,  is 
admissible  to  prove  the  delivery  of  goods.*  A  broker,  who  has 
effected  a  policy,  is  a  competent  vritness  for  the  assured,  to  i)rove 
any  matters  connected  \di\\  the  policy ;  even  though  he  has  an 
interest  in  it  arising  from  his  lien.^  A  factor,  who  sells  for  the 
plaintiff,  and  is  to  have  a  poundage  on  the  amount,  is  a  competent 
witness  to  prove  the  contract  of  sale.*^  So,  though  he  is  to  have 
for  himself  all  he  has  bargained  for  beyond  a  certain  amount,  he 
is  still  a  competent  witness  for  the  seller.'''  A  clerk,  who  has 
received  money,  is  a  competent  witness  for  the  party  who  paid  it, 


1  Bull.  N.  P.  280 ;  10  B.  &  C.  864,  per         2  Eilmonds  v.  Lowe,  8  B.  &  C.  407. 
Parke,  J. ;  Benjamin  v.  Porteus,  2  II.  Bl.         ^  Tlieobald  v.  Tregott,  11  Mod.  262, 

5yl  ;    filathcws   v.   Havdon,  2  Esp.   50'J.  per  llolt,  C.  J. 

Tliis  nefessity,  says  Mr.  Evans,  is  that  ■*  Bull.  N.  P.  289;  4  T.  R.  590 ;  Adams 

Avhic'li  arises  from  the  general  state  and  v.  Davis,  3  Esp.  48. 
order  of  society,  and  not  that  which  is  '"  Hunter  v.  Leathley,  10  B.  &  C.  858. 

merely  founded  on  the  accidental  want  or  *^  Dixon  v.  Cooper,  3  Wils.  40 ;  8hep- 

failure  of  evidence  in  the  particular  case,  ard  i\  Palmer,  6  Conn.  95 ;  Dupeau  r.  lly- 

Poth.  on  Obi.  by  Evans,  App.  No.  16,  ]>p.  ams,  2  iNlcCord,   146;    Scott  v.  Wells,'6 

208,  267.     In  all  the  cases  of  this  class,  Watts  &  Serg.  357. 

there  seems  also  to  be  enough  of  contin-  "  Benjamin  f.  Posteus,  2  H.  BI.  590; 

gcncy  in    the   nature  of  the  interest,   to  Cauue  c.  ISagory,  4  Martin,  81. 
render  the  witness  admissible  under  the 
general  rule. 


456  LAW   OF  EVIDENCE.  [PART   III. 

to  prove  the  payment,  tliougli  he  is  liimsclf  liahle  on  the  receipt 
ofit.^  A  carrier  is  admissible  for  the  plaintilT,  to  prove  that  he 
paid  a  sum  of  money  to  the  defendant  by  mistake,  in  an  action  to 
recover  it  back.^  So  of  a  banker's  clerk."^  A  servant  is  a  witness 
for  his  master,  in  an  action  against  the  latter  for  a  penalty,  such, 
for  example,  as  for  selling  coals  without  measure  by  the  bushel, 
though  the  act  were  done  by  the  servant.^  A  carrier's  iDookkeeper 
is  a  competent  witness  for  his  master,  in  an  action  for  not  safely 
carrying  goods. ^  A  shipmaster  is  a  competent  witness  for  the 
defendant  in  an  action  against  his  owner,  to  prove  the  advance- 
ment of  moneys  for  the  purposes  of  the  voyage,  even  though  he 
gave  the  plaintiff  a  bill  of  exchange  on  his  owner  for  the  amount.''' 
The  cashier  or  teller  of  a  bank  is  a  competent  witness  for  the 
l)ank,  to  charge  the  defendant  on  a  promissory  note,^  or  for  money 
lent,  or  overpaid,^  or  obtained  from  the  officer  without  the  security 
which  he  should  have  received ;  and  even  though  the  officer  has 
given  bond  to  the  bank  for  his  official  good  conduct.^  And  an 
agent  is  also  a  competent  witness  to  prove  his  own  authority,  if  it 
be  by  parol.^^ 

§  417.  This  exception  being  thus  founded  upon  considerations 
of  public  necessity  and  convenience,  for  the  sake  of  trade  and  the 
common  usage  of  business,  it  is  manifest,  that  it  cannot  be  extended 
to  cases  where  the  witness  is  called  to  testify  to  facts  out  of  the 
iisual  and  ordinary  course  of  business,  or  to  contradict  or  deny 
the  effect  of  those  acts  which  he  has  done  as  agent.  He  is  safely 
admitted,  in  all  cases,  to  prove  that  he  acted  according  to  the 
directions  of  his  principal,  and  within  the  scope  of  his  duty ;  both 
on  the  ground  of  necessity,  and  because  the  principal  can  never 
maintain  an  action  against  him  for  any  act  done  according  to  his 
own  directions,  whatever  may  be  the  result  of  the  suit  in  which  he 

1  Matliews  v.  Ilaytlon,  2  Esp.  509.  [A  ^  Stafford  Bank  v.  Cornell,  1  N.  Hamp. 
clerk  who  paid  out  tlie  money  of  his  em-     192. 

ploycr  hy  mistake  has  been  licld  to  lie  a  **  O'Brien  v.  Louisiana  State  Bank,  5 

competent  witness  for  his  eMuployer  in  any  Martin,  305,  n.  s.  ;  United  States  Bank  v. 

action  to  recover  hack  the  money.     Burd  Johnson,  Id.  310. 
V.  Ross,  15  Mis.  251.]  "  The  Franklin  Bank  v.  Freeman,  16 

2  Barker  v.  Macrae,  3  Campb.  144.  Pick.   535 ;    U.    S.   Bank  v.   Stearns,  15 
8  MarUn  v.  Ilorrell,  1  Stra.  647.  Wend.  314. 

*  E.  Ind.   Co.  V.  Gossing,  Bull.  N.  P.  ^^  Lowber  v.  Shaw,  5  Mason,  242,  per 

289,  per  Lee,  C.  J.  Story,  J.  ;  McGunnagle  v.  Thornton,  10 

6  Spencer  r.  Goulding,   Peake's    Cas.  S.  «&  R.  251 ;  Ilderton  v.  Atkinson,  7  T. 

129.  R.  480;    Birt  v.  Kershaw,  2  East,  458; 

•;  Descadillas  v.  Harris,  8  Greenl.  298  ;  [Gould  v.  NorfoUc  Lead  Co.  9  Cush.  338.1 
Mil  ward   v.    ilallett,   2  Caines,  77.     And 
see  Martineau  r.  Woodland,  2  C.  &  P.  65. 


CHAP.  II.]  COMPETENCY   OF   WITNESSES.  457 

is  called  as  a  witness.  But  if  the  cause  depends  on  the  question, 
whether  the  agent  has  been  guilty  of  some  tortious  act,  or  some 
negligence  in  the  course  of  executing  the  orders  of  his  principal, 
and  ill  respect  of  which  he  would  be  liable  over  to  the  principal, 
if  the  latter  should  fail  in  the  action  pending  against  him,  the 
agent,  as  we  have  seen,  is  not  a  competent  witness  for  his  prin- 
cipal, without  a  release.^ 

§  418.  In  the  fourth  class  of  exceptions  to  the  rule  of  incompe- 
tency by  reason  of  interest,  regard  is  paid  to  the  time  and  manner 
/^in  which  the  interest  was  acquired.  It  has  been  laid  down  in 
general  terms,  that  where  one  person  becomes  entitled  to  the 
testimony  of  another,  the  latter  shall  not  be  rendered  incompetent 
to  testify,  by  reason  of  any  interest  subsequently  acquired  in  the 
event  of  the  suit.^  But  though  the  doctrine  is  not  now  univer- 
sally admitted  to  that  extent,  yet  it  is  well  settled  and  agreed, 
that  in  all  cases  where  the  interest  has  been  subsequently  created 
by  the  fraudulent  act  of  the  adverse  party,  for  the  purpose  of 
taking  off  .his  testimony,  or  by  q^ny  act  of  mere  wantonness,  and 
aside  from  the  ordinary  course  of  business  on  the  part  of  the  wit- 
ness, liQ  is  not  thereby  rendered  incompetent.  And  where  the 
person  was  the  original  witness  of  the  transaction  or  agreement 
between  the  parties,  in  whose  testimony  they  both  had  a  common 
interest,  it  seems  also  agreed,  that  it  shall  not  he  in  the  power 
either  of  the  witness,  or  of  one  of  the  parties,  to  deprive  the  other 
of  his  testimony,  by  reason  of  any  interest  suljsequeiitly  acquired, 
even  though  it  were  acquired  without  any  such  iutciitiun  on  the 
part  of  the  witness  or  of  the  party .^  But  the  question,  upon  which 
learned  judges  have  been  divided  in  opinion  is,  whether,  where 
the  witness  was  not  the  agent  of  both  parties,  or  Avas  not  called 
as  a  witness  of  the  original  agreement  or  transaction,  he  ought  to 
be  rendered  incompetent  by  reason  of  an  interest  subsequently 
acquired  in  good  faith,  and  in  the  ordinary  course  of  business. 
On  this  point,  it  was  held  by  Lord  EUenborough,  that  the  pendency 

1  Supra,  §§  394,  395,  396 ;  Miller  v.  Vowell,  Skin.  586,  per  Ld.  Holt ;  Cowp. 
Falconer,  1  Campb.  251 ;  Theobald  v.  736 ;  Jackson  v.  Kunisey,  3  Johns.  Cas. 
Tregott,  11  Mod.  262;  Gevers  v.  Main-  234,237;  s((/>ra,  §  167 ;  [Sabine  r.  Strong, 
Avarinjj,   1  Holt's   Cas.  139 ;  McBraine  v.  6  Met.  670.] 

Fortune,  3  Campb.  317 ;    1  Stark.  Evid.  ^  Forrester  v.  Pigou,  3  Campb.  381 ;  1 

113;   Fuller  v.   AVhcelock,  10  Pick.  135,  Stark.  Evid.  118;  Long  y.  Bailie,  4  S.  & 

138 ;    iMcDowcU   c.    Stimpson,   3   Watts,  R.  222 ;  14  Pick.  47  ;   Phelps  v.  Kiley,  3 

129,  135,  per  Kennedy,  J.  Conn.  266,  272;  Rex  v.  Fox,  1  Sti-a.  652; 

2  See  Bent  v.  Baker,  3  T.  R.  27,  per  s«y<ra,  §  167. 
Ld.  Ken3on,  and  Ashhurst,  J. ;  Barluw  v. 

VOL.  I.  39 


458  LAW   OF   EVIDEN'CE.  [PART   III. 

of  a  suit  could  not  prevent  third  persons  from  transacting  business 
bond  fide  with  one  of  the  parties ;  and  that,  if  an  interest  in  the 
event  of  the  suit  is  thereby  acquired,  the  common  consequence  of 
hiw  must  follow,  that  the  person  so  interested  cannot  be  examined 
as  a  witness  for  that  party,  from  whose  success  he  will  necessarily 
derive  an  advantage.^  And  therefore  it  was  held,  that  where  the 
defence  to  an  action  on  a  policy  of  insurance  was,  that  there  had 
been  a  fraudulent  concealment  of  material  facts,  an  underwriter, 
who  had  paid  on  a  promise  of  repayment  if  the  policy  should  be 
determined  invalid,  and  who  was  under  no  obligation  to  become 
a  witness  for  either  party,  was  not  a  competent  witness  for  another 
underwriter,  who  disputed  the  loss.^  This  doctrine  has  been 
recognized  in  the  courts  of  several  of  the  United  States,  as  founded 
in  good  reason  ;  ^  but  the  question  being  presented  to  the  Supreme 
Court  of  the  United  States,  the  learned  judges  were  divided  in 
opinion,  and  no  judgment  was  given  upon  the  point.*  If  the 
subsequent  interest  has  been  created  by  the  agency  of  the  party 
producing  the  witness,  he  is  disqualified;  the  party  having  no 
right  to  complain  of  his  own  act.^ 

§  419.  It  may  here  be  added,  that  where  an  interested, witness 
does  all  in  his  power  to  divest  himself  of  liis  interest,  by  offering 
to  surrender  or  7'elease  it,  which  the  surrenderee  or  releasee,  even 
though  he  be  a  stranger,  refuses  to  accept,  the  principle  of  the 
rule  of  exclusion  no  longer  ap[)lies,  and  the  witness  is  held  admis- 
sible. Thus,  in  an  ejectment,  where  the  lessors  of  the  plaintiff 
claimed  under  a  will,  against  the  heir  at  law,  and  the  executor 
was  called  by  the  plaintiff  to  jwove  the  sanity  of  the  testator,  and 
was  ol)jected  to  by  the  defendant,  because  by  the  same  will  he  was 
devisee  of  the  reversion  of  certain  cop5'hold  lands ;  to  obviate 
which  objection  he  had  surrendered  his  estate  in  the  copyhold 
lands  to  the  use  of  the  heir  at  law,  but  the  heir  had  refused  to 
accept  the  surrender ;  the  court  held  him  a  competent  witness.*' 

1  Forrester  v.  Pigou,  3  Campb.  381 ;  1  missihle  in  all  cases,  where  the  partj'  ob- 

M.  &  S.  y,  s.  c. ;  Hovill  v.  Stephenson,  5  jecting  to  the  witness  is  himself  a  party  to 

Bing.  493 ;  supra,  §  167.  the   agreement   by  whieii  liis   interest  is 

^  Forrester  v.  Pigou,  8  Campb.  381 ;  1  acquireil.      Burgess   r.  Lane,   8    Greenl. 

M.  &  S.  9,  s.  c.  165,   170  ;    supra,  §  167. 

»  Piielps  V.  Ptiley,  3  Conn.  266,  272;  •*  Winship  v.  Bank  of  United  States, 

Eastman   v.    Winsiiip,   16    Pick.   44,   47;  5  Peters,  529,  5-52. 

Long  V.  Bailie,  4   Surg.  &  P.  222;  The  ^  Hovill  v.   Stephenson,  5  Bing.  493; 

Manchester   Iron    Manufacturing    Co.    v.  supra,  §  167. 

Sweeting,  10  Wend.  162.      In  Maine,  the  «  Goodtitle  v.  Welford,  1  Doug.  139;  5 

court  seems  to  have  held  the  witness  ad-  T.  11.  35,  per  Buller,  J.     The  legatee  in  a 


CHAP.  II.]  COMPETENCY   OF   WITNESSES.  459 

So,  if  the  interest  may  be  removed  Ijy  the  release  of  one  of  the 
parties  in  tlic  suit,  and  snch  party  olfers  to  remove  it,  but  the  wit- 
ness refuses,  he  cannot  thereby  deprive  the  party  of  his  testi- 
mony.^ 

§  420.  Where  the  witness,  thougli  interested  in  the  event  of 
the  cause,  is  so  situated  that  the  event  is  to  him  a  matter  of  indif- 
ference, he  is  still  a  competent  witness.  This  arises  where  he  is 
equally  interested  on  both  sides  of  the  cause,  so  that  his  interest  on 
one  side  is  counterbalanced  by  his  interest  on  the  other.^  But  if 
there  is  a  preponderance  in  the  amount  or  value  of  the  interest  on 
one  side,  this  seems,  as  we  have  already  seen,  to  render  him  an 
interested  witness  to  the  amount  of  the  excess,  and  therefore  to 
disqualify  him  from  testifying  on  that  side.^  Whether  the  cir- 
cumstance that  the  witness  has  a  remedy  over  against  another,  to 
indemnify  him  for  'what  he  may  lose  by  a  judgment  against  the 
party  calling  him,  is  sufheicnt  to  render  him  competent  by  equalizing 
his  interest,  is  not  clearly  agreed.  Where  his  liability  to  costs 
appears  from  his  own  testimony  alone,  and  in  the  same  mode  it 
is  shown  that  he  has  funds  in  his  hands  to  meet  the  charge,  it  is 
settled  that  this  does  not  render  him  incompetent.*  So,  where  he 
stated  that  he  was  iyidemnijied  for  the  costs,  and  considered  that 
he  had  ample  security.^  And  where,  upon  this  objection  being- 
taken  to  the  witness,  the  party  calling  him  forthwith  executed 
a  bond  to  the  adverse  party,  for  the  payment  of  all  costs,  with 
sureties,  whom  the  counsel  for  the  obligee  admitted  to  be  abun- 
dantly responsible,  but  at  the  same  time  he  refused  to  receive  the 
bond,  the  court  held  the  competency  of  the  witness  to  be  thereby 
restored ;  observing,  however,  that  if  the  solvency  of  the  sureties 
had  been  denied,  it  might  have  presented  a  case  of  more  embar- 


will,  who  has  been  paid,  is  considered  a  he  is  a  competent  witness  witliout  a  re- 
competent  witness  to  support  the  will  in  lease,  to  impeach  one  of  the  sales.     Nute 
a  suit  at  law.     Wyndham  v.  Chetwynd,  1  i-.  Bryant,  81  Maine,  553.] 
Burr.  4U.                                           '  s  Supra,  §§  391,  39U,  and  cases  there 

1  I.Phil.  Evid.  149.  cited.     Where  the  interest  of  the  witness 

2  Supra,  §  3U9.  See  also  Cushman  v.  is  prima  facie  balanced  between  the  par- 
Loker,  2  Mass.  108;  Emerson  v.  Provi-  ties,  the  possibility  of  a  better  defence 
deuce  Hat  Maiuif.  Co.  12  Mass.  237 ;  against  one  than  the  other  will  not  pre- 
Eoberts  v.  Whiting,  1(3  Mass.  186 ;  Jiice  vent  his  being  sworn.  Starkweather  i-. 
r.  Austin,  17  Mass.  179;  Prince  v.  Sliep-  Mathews,  2  Ilill,  131. 

ard,   9  Pick.  17(1;    Lewis  v.  Hodgdon,  5  ■*  Collins   i\   McCrummon,    3    Martin, 

Shepl.  2(i7;    [Adains  v.  Gardiner,  13  B.  n.  s.  lUtJ ;  Allen  c.  Hawks,  13  I'ick.  79. 
Mon.  197  ;  Governor  v.  Gee,  19  Ala.  199.  "  Cliatl'ee  i'.  Thomas,  7  Cowen,  358 ; 

Where    both   parties   to  a  replevin   suit  contra.  Pond  v.  Hartwell,  17  Pick.  272,  per 

claim  the  projjorty  by  purchase  from  the  Shaw,  C.  J. 
same  vendor,  his  interest  is  balanced,  and 


460  LAW    OF    EVIDENCE.  [I'AKT    III. 

rassmcnt,  it  being  very  questionable  whether  the  jiulge  could  deter- 
mine upon  the  sufficiency  of  the  obligors,  so  as  to  al)solvc  the 
witness  from  liability  to  costs.^  The  point  upon  wliicb  the  au- 
thorities seem  to  be  conflicting  is  where  there  is  merely  a  right 
of  action  over,  irrespective  of  the  solvency  of  the  party  lial)le ; 
the  productiveness  of  the  remedy,  in  actual  satisfaction,  being 
wholly  contingent  and  uncertain.  But  in  such  cases,  the  weight 
of  authority  is  against  the  admissibility  of  the  witness.  Thus,  in 
an  action  against  the  sheriff  for  taking  goods,  his  officer,  who 
made  the  layj,  being  called  as  a  witness  for  the  defence,  stated 
upon  the  voir  dire,  that  he  gave  security  to  the  sheriff,  and  added, 
that  he  was  indemnified  by  the  creditor,  meaning  that  he  had  his 
bond  of  indemnity.  But  Lord  Tenterden  held  him  not  a  com- 
petent witness ;  observing,  that  if  the  result  of  the  action  were 
against  the  sheriff,  the  witness  was  liable  to  a  certainty ;  and  he 
might  never  get  repaid  on  his  indemnity ;  therefore  it  was  his 
interest  to  defeat  the  action.^  So,  where  the  money,  with  which 
the  surety  in  a  replevin-bond  was  to  be  indemnified,  had  been 
deposited  in  the  hands  of  a  receiver  designated  by  the  judge,  it 
was  held,  that  this  did  not  restore  the  competency  of  the  surety 
as  a  witness  in  the  cause  for  the  principal ;  for  the  receiver  might 
refuse  to  pay  it  over,  or  become  insolvent,  or,  from  some  other 

/^cause,  the  remedy  over  against  him  might  be  unproductive.^  The 
true  distinction  lies  between  the  case,  where  the  witness  must 
resort  to  an  action  fOr  his  indemnity,  and  that  in  which  the  money 
is  either  subject  to  the  order  of  the  court,  and  within  its  actual 

V  control  and  custody,  or  is  in  the  witness's  own  hands.  Therefore 
it  has  been  laid  down  by  a  learned  judge,  that  where  a  certain 
sum  of  money  can  be  so  placed,  either  with  the  witness  himself, 
or  with  the  court,  and  its  officers,  under  a  proper  rule  directing 
and  controlling  its  application  according  to  the  event,  as  that  the 
interest  creating  the  disability  may  be  met  and  extinguished  before 
the  witness  is  or  can  be  damnified,  it  shall  be  considered  as  bal- 

1  Brandifice  v.  Hale,  13  Joluis.  125 ;  per  Sliaw,  C.  J. ;  Schillenger  v.  McCann, 
Lake  v.  Aubiirn,  17  Wend.  18,  S.  P. ;  0  Greeiil.  ?.G4 ;  Kendall  i:.  Field,  2  Sliepl. 
supra,  §  o'.»2.  30  ;   iSlielby  v.  Smith,  2  A.  K.  .Afarsh.  504. 

2  W'liiieiiouso  V.  Atkinson,  3  C.  &  P.  Tlie  cases  in  which  a  mere  remedy  over 
344;  Jewett  v.  Adams,  8  Greenl.  30;  seems  to  have  been  thonj;lit  sufficient  to 
I'ainc  V.  Iln^sey,  5  Siiepl.  274.  equalize  the   interest  of  the  witness  are 

3  Wallace  v.  Twyman,  3  J.  J.  Marsh.  Martineau  v.  Woodland,  2  C.  &  P.  65 ; 
4."y.)-4(U.  See  also  Owen  r.  Mann,  2  Day,  Banks  v.  Kain,  Id.  5'J7 ;  Gregory  r. 
R.  3'JU,  404 ;    Brown  v.  Lynch,  1  Paige,  Dodge,  14  Wend.  S'JS. 

147,  157 ;    Allen  v.  Hawks,  13  Pick.  85, 


CHAP.  II.]  COMPETENCY   OF   WITNESSES.  4G1 

ancing  or  extinguishing  that  interest,  so  as  to  restore  the  com- 


> 


petency  of  the  witness.^ 

§  421.  In  regard  to  the  time  of  taking  the  objection  to  the  com- 
petency of  a  witness,  on  the  ground  of  interest,  it  is  obvious  that, 
from  the  preliminary  nature  of  the  objection,  it  ought  in  general 
to  be  taken  before  the  witness  is  examined  in  chief.  If  tlie  party 
is  aware  of  tlie  existence  of  the  interest,  he  will  not  be  i)ermitted 
to  examine  the  witness,  and  afterwards  to  object  to  his  competency, 
if  he  should  dislike  his  testimony.  He  has  his  election,  to  admit 
an  interested  person  to  testify  against  him,  or  not ;  but  in  this, 
as  in  all  other  cases,  the  election  must  be  made  as  soon  as  the 
opportunity  to  make  it  is  presented ;  and  failing  to  make  it  at 
that  time,  he  is  presumed  to  have  waived  it  for  ever.^  But  he  is 
not  prevented  from  taking  the  objection  at  any  time  during  the 
trial,  provided  it  is  taken  as  soon  as  the  i)\terest  is  discovered.-^ 
Thus,  if  discovered  during  the  examination  in  chief  by  the  plain- 
tiff, it  is  not  too  late  for  the  defendant  to  take  the  objection.* 
But  if  it  is  not  discovered  until  after  the  trial  is  concluded,  a  new 
trial  will  not,  for  that  cause  alone,  be  granted  ;  ^  unless  the  interest 
was  known  and  concealed  by  the  party  producing  the  witness.^ 
The  rule  on  this  subject,  in  criminal  and  civil  cases,  is  the  same." 
Formerly,  it  was  deemed  necessary  to  take  the  objection  to  the 
competency  of  a  witness  on  the  voir  dire;  and  if  once  sworn  in 
chief,  he  could  not  afterwards  be  objected  to,  on  the  ground  of 
interest.  But  the  strictness  of  this  rule  is  relaxed  ;  and  the  objec- 
tion is  now  usually  taken  after  he  is  sworn  in  chief,  but  previous 
to  his  direct  examination.  It  is  in  the  discretion  of  the  judge  to 
permit  the  adverse  party  to  cross-examine  the  witness,  as  to  his 
interest,  after  he  has  been  examined  in  chief;  but  the  usual  course 
is  not  to  allow  questions  to  be  asked  upon  the  cross-examindtion, 
which  properly  belong  only  to  an  examination  upon  the  voir  clire.^ 

1  Pond  t.'.  Hartwell,  17  Pick.  2G9,  272,  competency  of  a  witness  can  be  postponed, 
per  Shaw,  C.  J.  1  Pliil.  Evid.  154,  note  (3). 

2  Donelson  v.  Taylor,  8  Pick.  390,  392;  *  Jacobs  v.  Laybourn,  11  M.  &  W.  685. 
Belclier  v.  Magnav,"  1  New  Pr.  Cas.  110;  And  see  Yardley  v.  Arnold,  10  M.  &  W. 
[Snow  r.  Batclielder,  8  Cush.  513.]  Ill ;  G  Jnr.  718. 

**  Stone   V.   Blackburn,    1   Esp.  37;    1  ^  Turner  c.  Pearte,  1  T.  R.  717 ;  Jack- 
Stark.  Evid.  124;  Shiu-tleff  r.  Wilhird,  19  son  v.  Jackson,  5  Cowen,  173. 
Pick.  202.     Wiicre  a  jiarty  has  been  fully          '^  Niles  v.  Brackett,  15  Mass.  378. 
apprised  of  the  grounds  of  a  witness's  in-          ''  Commonwealth   v.   Green,  17   Mass. 
competenc}'   by   the   opening    speech   of  538 ;  Boscoe's  Crim.  Evid.  124. 
counsel,  or  the  examination  in  chief  of  the          **  Howell  t-.  Lock,  2  Campb.  14;  Odi- 
witness,  doul)ts  have  been  entertained  at  orne  c.  Winkley,  2  Gallis.  51 ;  Porigal  '■. 
nisi  2>riiis,   whether   an   objection   to   the  Nicholson,  1  Wightw.  64.     The  objection 

39* 


462 


LAW    OF   EVIDENCE. 


[part  III. 


But  if,  iiotwithstaiidiiig  every  ineffectual  endeavor  to  exclude  the 
witness  on   the   ground   of  incompetency,  it   afterwards   should 
appear  incidentally,  in  the  course  of  the  trial,  that  the  witness  is 
interested,  his  testimony  will  be  stricken  out,  and  the  jury  will 
be  instructed  wholly  to  disregard  it.^     The  rule  in  equity  is  the 
same  as  at  law ;  ^  and  the  principle  applies  with  equal  force  to 
testimony  given  in  a  deposition  in  writing,  and  to  an  oral  exam- 
ination in  court.     In  either  case,  the  better  opinion  seems  to  be, 
that  if  the  objection  is  taken  as  soon  as  may  be  after  the  interest 
is  discovered,  it  will  be  heard ;  but  after  the  party  is  in  mora,  it 
comes  too  latc.^     One  reason  for  requiring  the  oljjection  to  be 
made  thus  early  is,  that  the  other  party  may  have  opportunity  to 
remove  it  by  a  release ;  which  is  always  allowed  to  be  done,  when 
the  oljjection  is  taken  at  any  time  before  the  examination  is  com- 
I  pleted.^     It  is  also  to  be  noted  as  a  rule,  applicable  to  all  objections 
'  to  the  reception  of  evidence,  that  the  ground  of  objection  must  be 
{distinctly  stated  at  the  time,  or  it  will  be  held  vague  and  nuga- 
J  tory  .^ 


that  tlie  witness  is  the  real  plaintiff,  ought 
to  be  taken  on  the  voir  dire.  Devvclnev  v. 
PiUiner,  4  M.  &  W.  664 ;   7  Dowl.  177, 

1  Davis  V.  Barr,  9  S.  &  R.  137;  Sehil- 
lenfrer  v.  McCann,  6  Greenl.  364;  Fisher 
t'.  Wjillard,  13  Mass.  37'J;  Evans  v.  Eaton, 
1  Peters,  C.  C.  K.  338 ;  Butler  v.  Tufts,  1 
Shepl.  302;  Stout  r.  Wood,  1  Blackf.  71; 
Mitchell  V.  Mitcliell,  11  G.  &  J.  388.  The 
same  rule  seems  applicable  to  all  the  in- 
struments of  evidence,  whether  oral  or 
written.  Scribner  v.  McLaughlin,  1  Al- 
len, 37'J;  and  see  Swifl  v.  Dean,  6  Johns. 
523,  536;  Perigal  v.  Nicholson,  Wightw. 
63  ;  Howell  v.  Lock,  2  Campb.  64  ;  Need- 
ham  V.  Smith,  2  Vern.  4(J4.  In  one  case, 
liowever,  where  the  examination  of  a  wit- 
ness was  coiichided,  and  he  was  dismissed 
from  the  box,  but  was  afterwards  recalled 
by  the  judge,  for  the  purp(jse  of  asking 
liira  a  question,  it  was  ruled  by  Gibbs, 
C.  J.,  that  it  was  then  too  late  to  object  to 
liis  competency,  lieeching  r.  Gower,  1 
Holt's  Cas.  313;  and  see  Heely  r.  Barnes, 
4  Denio,  73.  And  in  chancery  it  is  held, 
that  wliere  a  witness  has  been  cross-exam- 
ined by  a  party,  with  full  knowledge  of 
an  objection  to  his  competency,  tlie  court 
will  not  allow  the  objection  to  be  taken  at 
tlie  hearing.  Plagg  v.  Mann,  2  Sumn. 
487. 

2  Swift  V.  Dean,  6  Johns.  523,  538; 
Needham  v.  Smith,  2  Vern.  463  ;  Vaughan 
V.  Worrall,  2  Swanst.  40U.     In  this  case, 


Lord  Eldon  said,  that  no  attention  could 
be  given  to  the  eviilence,  though  the  in- 
terest were  not  discovered  until  the  last 
question,  after  he  lias  been  "  cross-exam-j 
iiied  to  the  bone."  See  Greslev  on  Evid.l 
234-236;  Pvogers  v.  Dibble,  3  Paige,  238; 
Town  V.  Neediiam,  Id.  545,  552  ;  Harrison 
V.  Courtauld,  1  Puss.  &  M.  428;  Moor- 
house  V.  De  Passou,  G.  Cooper,  Ch.  Cas. 
300 ;  10  Ves.  433,  s.  c.  See  also  Jacobs 
i\  Lavbourn,  7  Jur.  562. 

3  bonelson  v.  Taylor,  8  Pick.  390. 
Where  the  testimony  is  by  deposition,  the 
objection,  if  the  interest  is  known,  ought 
regularly  to  be  taken  in  limine;  and  the 
cross-examination  should  be  made  dp,  bene 
essf,  under  protest,  or  with  an  express  re- 
servation of  the  right  of  objection  at  the 
trial ;  unless  the  interest  of  the  witness  is 
developed  incidentally,  in  his  testimony 
to  the  merits.  But  the  practice  on  this 
point  admits  of  considerable  latitude,  in 
the  discretion  of  tlie  jutlge.  United  States 
r.  One  Case  of  Ilair  Pencils,  1 1'ainc.  400; 
Talbot  V.  Clark,  8  Pick.  51  ;  Smith  u. 
Sparrow,  11  Jur.  126;  The  Mohawk  Bank 
V.  Atwater,  2  Paige,  54 ;  Ogle  v.  Pelaski, 
1  Holt's  Cas.  485;  2  Tidd's  Pr.  812.  As 
to  the  mode  of  taking  the  objection  in 
chancery,  see  1  Ilotiiu.  Ciian.  489 ;  Gass 
V.  Stinson,  3  Sumn.  605. 

*  Tallman  v.  Dutciier,  7  Wend.  180; 
Doty  V.  Wilson,  14  Johns.  378 ;  Wake  u. 
Lock,  5  C.  &  P.  454. 

^  Camden  v.  Dorenius,  3  Howard,  S.  C. 


CHAP,  II.]  COMPETENCY   OP  WITNESSES.  463 

§  422.  Where  the  objection  to  the  competency  of  the  witness 
arises  from  his  own  examination^  he  may  be  further  interrogated  to 
facts  tending  to  remove  tlic  objection,  though  the  testimony  might, 
on  other  grounds,  be  inadmissible.  When  the  whole  ground  of 
the  objection  comes  from  himself  only,  what  he  says  must  be 
taken  together  as  he  says  it.^  Thus,  where  his  interest  appears, 
from  his  own  testimony,  to  arise  from  a  written  mstrument,  which 
is  not  produced,  he  may  also  testify  to  the  contents  of  it ;  but  if 
he  produces  the  instrument,  it  must  speak  for  itself.  ^  So,  where 
the  witness  for  a  chartered  company  stated  that  he  had  been  a 
member,  he  was  permitted  also  to  testify  that  he  had  subsequently 
been  disfranchised. ^  So,  where  a  witness  called  by  an  adminis- 
trator testified  that  he  was  one  of  the  heirs  at  law,  he  was  also 
permitted  to  testify  that  he  had  released  all  his  interest  in  the 
estate.*  And  generally,  a  witness  upon  an  examination  in  court 
as  to  his  interest  may  testify  to  the  contents  of  any  contracts, 
records,  or  documents  not  produced,  affecting  the  question  of  his 
interest.^  But  if  the  testimony  of  the  witness  is  taken  upon 
interrogatories  in  writing,  previously  filed  and  served  on  the 
adverse  party,  who  objects  to  his  competency  on  the  ground  of 
interest,  which  the  witness  confesses,  but  testifies  that  it  has  been 
released  ;  the  release  must  be  produced  at  the  trial,  that  the  court 
may  judge  of  it.^ 

§  423.  The  mode  of  proving  the  interest  of  a  witness  is  either  by 
his  own  examination,  or  by  evidence  aliunde.  But  whether  the 
election  of  one  of  these  modes  will  preclude  the  party  from  after- 
wards resorting  to  the  other  is  not  clearly  settled  by  the  authori- 
ties. If  the  evidence  offered  aliunde  to  prove  the  interest  is 
rejected,  as  inadmissible,  the  witness  may  then  be  examined  on 
the  voir  dire."     And  if  the  witness  on  the  voir  dire  states  that  he 

Rep.  515,  530;   Elwood  v.  Deifendorf,  5  ^  Miller  v.  The  Mariners'  Church,  7 

Barb.  S.  C.  R.  398 ;  Carr  v.  Gale,  Daveis,  Greenl.  51 ;  Fifield  v.  Smith,  8  Shepl.  383  ; 

R.  337.  Sewell  v.  Stubbs,  1  C.  &  P.  73 ;  Quarter- 

1  Abrahams  v.  Bunn,  4  Burr.  2256,  per  mau  v.  Cox,  8  C.  &  P.  97 ;  Luniss  v.  Row, 

Ld.  Mansfield  ;  Bank  of  Utica  v.  Meste-  2  P.  &  D.   538 ;    Havs  v.  Richardson,  1 

reau,  3  Barb.  Ch.  R   528.  Gill  &  J.  3G6;  Stebbin's  v.  Sackett,  5  Conn. 

-  Buder   V.   Carver,  2  Stark.  R.  433.  258;  Baxter  i\  Rodman,  3  Pick.  435.   Tiie 

See  also  Rex  v.  Gisbm-n,  15  East,  57.  case  of  Goodhay  v.  Hendry,  1  ]\lo.  6c  M. 

^  Butciier's  Company  v.  Jones,  1  Esp.  319,  api)arently  contra,  is  opposed  by  Car- 

100.      And     see     Botham    v.    Swiugler,  lisle  v.  Eddy,  1  C.  &  P.  234,  and  by  Wand- 

Peake's  Cas.  218.  less  i:  Cawthorne,  1  Mo.  &  M.  321,  n. 

■*  Insraham    v.  Dade,   Lend.   Sittings  •*  Southard  v.  Wilson,  8  Shepl.  494 ; 

aflcr  Mich,   T.    1817  ;   1   C.  P.  234,  n. ;  Hobart  v.  Bartlett,  5  Shepl.  429. 

Wandless  r.  Cawtiiorne,  B.  R.  Guildhall,  "  Main  c.  Newson,  Anthon's  Cas.  13. 

1829;  1  M.  &  M.  321,  n.  But  a   witness   cannot  be    excluded    by 


464 


LAW   OF   EVIDENCE. 


[part  hi. 


docs  not  know,  or  leaves  it  doubtful  whether  he  is  interested  or 
not,  his  interest  may  be  shown  by  other  evidence.^  It  has  also 
been  held,  tliat  a  resort  to  one  of  these  modes  to  prove  the  interest 
of  the  witness  on  one  ground  does  not  preclude  a  resort  to  the 
other  mode,  to  prove  the  interest  on  another  ground.^  And  where 
the  objection  to  tlie  competency  of  the  witness  is  founded  upon  the 
evidence  already  adduced  by  tlic  party  offering  him,  this  has  been 
adjudged  not  to  be  such  an  election  of  the  mode  of  proof,  as  to 
preclude  the  objector  from  tlie  right  to  examine  the  witness  on  the 
voh-  dire.^  But,  subject  to  these  modifications,  the  rule  recog- 
nized and  adopted  by  the  general  current  of  authorities  is,  that 
where  the  objecting  party  has  undertaken  to  prove  the  interest  of 
the  witness,  by  interrogating  him  upon  the  voir  dire,  he  shall  not, 
upon  failure  of  that  mode,  resort  to  the  other  to  prove  facts,  the 
existence  of  which  was  known  when  the  witness  was  interrogated.** 
The  party  appealing  to  the  conscience  of  the  witness,  offers  him 
to  the  court  as  a  credible  witness ;  and  it  is  contrary  to  tlie  spirit 
of  the  law  of  evidence,  to  permit  him  afterwards  to  say,  that 
tlie  witness  is  not  worthy  to  be  believed.  It  would  also  violate 
another  rule,  by  its  tendency  to  raise  collateral  issues.  Nor  is  it 
deemed  reasonable  to  permit  a  party  to  sjiort  witli  tlie  conscience 
of  a  witness,  when  he  has  other  proof  of  his  interest.     But  if  evi- 


proof  of  his  own  admission  tliat  he  was 
interestfil  in  tlie  suit.  Bates  v.  Kyland, 
C  Alabama  II.  668;  Pierce  v.  Chase,  8 
Mass.  487,  488 ;  Commonwealth  v.  Waite, 
5  Mass.  261 ;  George  v.  Stubbs,  13  Shepl. 
•243. 

1  Shannon  v.  The  Commonwealth,  8 
S.  &  W.  444;  Galbraith  6-.  Galbraith,  6 
Watts,  \\-l\  Bank  of  Columbia  v.  Ma- 
gruder,  6  liar.  &  J.   172. 

■•2  Stebbins  v.  Sackett,  5  Conn.  258. 

8  Bridge  v.  Wellington,  1  Mass.  221, 
222. 

*  In  the  old  books,  including  the  ear- 
lier editions  of  Mr.  Starkie's  and  Mr.  I'liil- 
lips's  Treatises  on  Evidence,  the  rule  is 
clearl\-  laid  down,  that  alter  an  examina- 
tion upon  the  voir  dire,  no  other  mode 
of  proof  can  in  any  case  be  resorted  to ; 
e.xcei)ting  only  the  case  where  the  inter- 
est was  developed  in  the  course  of  trial 
of  the  issue.  But  in  the  last  editions  of 
those  works  it  is  said,  that  "  if  the  witness 
discharged  himself  on  the  voir  dire,  the 
party  who  olijects  may  still  Sujjport  his 
objection  by  evidence  ;  "  but  no  authority 
is  cited  for  the  position.  1  Stark.  Kvid. 
124;  Phil.  &  Am.  on  Evid.  14'J;    1  Phil. 


Evid.  154.  Mr.  Starkie  had  previously 
added  these  words  :  "  as  ])art  of  his  own 
case"  (see  2  Stark.  Evid.  p.  756,  1st 
edit.) ;  and  with  this  qualUication  the  re- 
mark is  sui)]i()rted  by  authority,  and  hs 
correct  in  principle.  The  question  of*^ 
competency  is  a  collateral  question;  and 
the  rule  is,  that  when  a  witness  is  asked  a 
question  u])on  a  collateral  ])()int,  his  an- 
swer is  final,  and  cannot  be  contradicted  ; 
that  is,  no  coUatei-al  evidence  is  admissU/' 
ble  for  that  i)iu-pose.  Harris  ?>.  Tipi)et^ 
2  Campb.  637  ;  Philadelphia  &  Trenton 
Co.  V.  Stimi)son,  14  Peters,  448,  401 ;  Har- 
ris V.  Wilson,  7  Wend.  57 ;  Odiorne  v. 
Winkley,  2  (iallis,  58 ;  lic.x  v.  Watson,  2 
Stark.  K.  14'J-157.  But  if  the  evidence, 
subsequently  given  upt^n  the  matter  in 
issue,  should  also  prove  the  witness  inter- 
ested, his  testimony  may  well  be  stricken 
out,  without  violating  any  rule.  Brock- 
bank  V.  Anderson,  7  Man.  &  lir.  295,  313. 
The  American  courts  have  followed  tho 
old  Enu'lish  rule,  as  stated  in  the  te.xt. 
Butler  (''.  Butler,  3  Day,  K.  214  ;  Stebbins 
V.  Sackett,  5  Conn.  258,  261 ;  Chance  v. 
Hine,  6  Conn.  231  ;  Welden  v.  Buck,  An- 
tliou's    Cas.  U;    Chatfield    v.    Lallirop,   6 


CHAP.  II.]  COMPETENCY   OP  WITNESSES.  465 

deuce  of  his  interest  has  been  given  aliunde^  it  is  not  proper  to 
examine  the  witness,  in  order  to  explain  it  away.^ 

§  424.  A  witness  is  said  to  be  examined  upon  the  voir  dire, 
when  he  is  sworn  and  examined^ as  to  the  fact  wlicther  he  is  not 
a  pjartj  interested  in  the  cause.-  And  tliougli  tliis  term  was  for- 
merly and  more  strictly  applied  only  to  the  case  where  the  witness 
was  sworn  to  make  tnie  answers  to  such  questions  as  the  court 
might  put  to  him,  and  before  he  was  sworn  in  chief,  yet  it  is  now 
extended  to  the  preliminary  examination  to  his  interest,  whatever 
may  have  been  the  form  of  the  oath  under  which  the  inquiry  is 
made. 

§  425.  The  question  of  interest,  though  involving  facts,  is  still 
a  preliminary  question,  preceding,  in  its  nature,  the  admission 
of  the  testimony  to  the  jury.  It  is  therefore  to  be  deteinnined  hy 
the  court  alone,  it  being  the  province  of  the  judge  and  not  of  the 
jury,  iii  the  first  instance,  to  pass  upon  its  efficiency.^  If,  how- 
ever, the  question  of  fact  in  any  preliminary  inquiry,  such,  for 
instance,  as  the  proof  of  an  instrument  by  subscril»ing  witnesses, 
is  decided  by  the  judge,  and  the  same  question  of  fact  afterwards 
recurs  in  the  course  of  the  trial  upon  the  merits,  the  jury  are  not 
precluded  by  the  decision  of  the  judge,  but  may,  if  they  are  satis- 
fied upon  the  evidence,  find  the  fact  the  other  way.*  In  determin- 
ing the  question  of  interest,  where  the  evidence  is  derived  aliunde, 
and  it  depends  upon  the  decision  of  intricate  questions  of  fact,  the 
judge  may,  in, his  discretion,  take  the  opinion  of  the  jury  upon 
them.^  And  if  a  witness,  being  examined  on  the  voir  dire,  testifies 
to  facts  tending  to  prove  that  he  is  not  interested,  and  is  there- 
upon admitted  to  testify ;  after  which  opposing  evidence  is  intro- 
duced, to  the  same  facts,  which  are  thus  left  in  doubt,  and  the 
facts  are  material  to  the  issue ;  the  evidence  must  be  weighed  by 
the  jury,  and  if  they  thereupon  believe  the  witness  to  be  interested, 
they  must  lay  his  testimony  out  of  the  case.*^ 

426.  The  competency  of  a  witness,  disqualified  by  interest,  may 
always  be  restored  hy  a  proper  release?     If  it  consists  in  an  interest 

Pick.   418 ;    Evans   r.   Eaton,   1    Peters,  ^  Harris  v.  Wilson,  7  Wend.  57 ;  supru, 

C.   C.   11.   322;     Stewart    v.    Locke,   33  §49. 

Maine,  87.  *  Ross  v.  Gould,  5  Greenl.  204. 

1  Mott  V.  Hicks,  1  Cowen,  518;  Evans  ^  See  sujnv,  §  49. 

V.  Gray,  1  Martin,  x.  s.  709.  "  Walker  v.  Sawyer,  13  N.  Hamp.  R. 

-  Termes  de  la  liOy,  Verb.  Voi/er  dire.  191. 

And  see  Jacobs  i\  Laybonrn,  11  M.  &  W.  '  Wbere  tbe  witness  produces  tbe  re- 

685,  wliere  tbe  nature  and  use  of  an  ex-  lease  from  bis  own  possession,  as  jiart  of 

aniiiiation  upon  tbe  voir  dire  nre  stilted  and  bis  testimony,  in  answer  to  a  question  put 

explained  by  Ld.  Abinger,  C.  B.  to   him,   its  execution  needs   not  to   be 


4G6  LAW   OF   EVIDENCE.  [PART  III. 

vested  in  himself,  lie  may  divest  himself  of  it  by  a  release,  or 
other  })ro})cr  conveyance.  If  it  consists  in  a  liability  over,  whether 
to  the  party  calling  him,  or  to  another  person,  it  may  be  released 
/^Dy  the  person  to  whom  he  is  liable.  A  general  release  of  all 
actions  and  causes  of  action  for  any  matter  or  thing,  which  has 
happened  previous  to  the  date  of  the  release,  will  discharge  the 
witness  from  all  liability  conscqiient  u])on  the  event  of  a  suit  then 
\existing.  Such  a  release  from  the  drawer  to  the  acccj^tor  of  a  bill 
of  exchange  was  therefore  held  sufficient  to  render  him  a  com- 
petent witness  for  the  drawer,  in  an  action  then  pending  by  the 
payee  against  him  ;  for  the  transaction  was  already  passed,  which 
was  to  lay  the  foundation  of  the  future  liability ;  and  upon  all 
such  transactions  and  inchoate  rights  such  a  release  will  operate. ^ 
A  release,  to  qualify  a  witness,  must  be  given  before  the  testimony 
is  closed,  or  it  comes  too  late.  But  if  the  trial  is  not  over,  the 
court  will  i)crmit  the  witness  to  be  re-examined,  after  he  is  re- 
leasnid ;  and  it  will  generally  be  sufficient  to  ask  him  if  his  testi- 
mony, already  given,  is  true ;  the  circumstances  under  which  it 
has  been  given  going  only  to  the  credibility .^ 

§  427.  As  to  the  person  hy  ivliom  tlie  release  sJiould  he  given,  it  is 
obvious  that  it  must  l)e  by  the  party  holding  the  interest  to  be 
released,  or  l)y  some  person  duly  authorized  in  his  behalf.  A 
release  of  a  bond  debt  by  one  of  several  obligees,  or  to  one  of 
several  obligors,  will  operate  as  to  them  all.^     So,  where  several 

proved  by  the  subscribing  witnesses ;  but  does  not  render  a  witness  competent, 
it  is  to  be  *iiken  as  part  of  his  testimony.  Dennett  v.  Lamson,  30  Maine,  228.] 
Iftlie  question  is  aslied  by  the  party  call-  i  Scott  v.  Lifford,  1  Canipb.  24'.j,  250; 
ing  tiie  witness,  who  thereu])on  prochice  Cartwright  v.  Williams,  2  Stark.  It.  o40. 
the  release,  tiie  party  is  estopped  to  deny  -^  Wake  v.  Lock,  5  C.  &  1'.  454 ;  Tail- 
that  it  is  a  valid  and  true  release.  But  man  u.  Dutchcr,  7  Wend.  180;  Doty  v. 
where  the  release  is  produced  or  set  iip  Wilson,  14  Johns.  .378.  And  see  Clark 
by  the  party  to  the  suit,  to  establish  his  v.  Carter,  4  Moor,  207. 
own  title,  he  must  prove  its  execution  by  "  Co.  Lit.  232,  a. ;  Cheethani  i;.  Ward, 
the  subscribing  witness.  Citizens'  Hank  1  B.  &,  1'.  G30.  So,  by  one  of  several  part- 
r.  Nantucket  Steamboat  Co.  2  Story,  K.  ners,  or  joint  proprietors,  or  owners. 
IG,  42.  And  see  Morris  v.  Thornton,  8  Whitamore  y.  Waterhouse,  4  C.  &  P.  383; 
T.  R.  303 ;  Jackson  v.  Pratt,  10  Johns.  Ilockless  v.  Mitchell,  4  Esp.  86  ;  Bulkley 
381 ;  Carlisle  v.  Eady,  1  C.  &  P.  234 ;  In-  v.  Dayton,  14  Johns.  387 ;  Haley  v.  God- 
gram  r.  Dada,  Ibid,  note ;  Goodhay  ?;.  frey,  4  Shepl.  305.  But  where  the  inter- 
Hendry,  1  Mood.  &  Malk.  319.  See  also  est  of  the  parties  to  the  record  is  several. 
Southard  v.  Wilson,  8  Shepl.  4',34  ;  Hall  r.  a  release  by  one  of  them  only  is  not  suffi- 
Steamboat  Co.  13  Conn.  31'.l.  [The  in-  cieut.  Betts  v.  Jones,  U  C.  &  P.  10'.). 
strument  of  release  need  not  bo  under  seal.  [Where  the  process  is  in  ram   against  a 

1  Dunham  v.  Branch,  5  Cush.  558,  560.     A  vessel,  to  recover  the  value  of  goods  lost 

technical  release,  to  make  an  interested  or  damaged,  the  master  is  an  interested 

witness   competent,  must  be  imder  seal,  witness;  but  a  release  from  some  of  the 

Governor  v.   Daily,   14  Ala.  46'.).     A  re-  part-owners  renders  him  competent.    The 

ceipt  in  full  of  all  demands,  not  under  seal,  Peytona,  2  Curtis,  C.  C.  21.] 


CHAP.  II.]  COMPETENCY   OP   WITNESSES.  467 

had  agreed  to  bear  the  expense  of  a  joint  undertaking,  in  pre- 
ferring a  petition  to  parliament,  and  an  action  was  lirought  against 
one  of  tlicni,  anotlior  of  the  contractors  was  hchl  a  competent 
witness  for  the  defendant,  after  l)cing  released  by  him  ;  for  tlie 
event  of  the  suit  could  at  most  only  render  him  lialtle  to  the  de- 
fendant for  his  contributory  share. ^  Ihit  if  there  is  a  joint  fund 
or  property  to  be  directly  affected  by  the  result,  the  same  reason 
would  not  decisively  apply ;  and  some  act  of  divestment,  on  the 
part  01  the  witness  himself,  would  be  necessary .^  Thus,  in  an 
action  on  a  charter-party,  a  joint-owner  with  the  plaintiff,  though 
not  a  registered  owner,  is  not  a  competent  witness  for  the  plain- 
tiff, unless  cross  releases  are  executed  between  them.^  A  release 
by  an  infant  is  generally  sufficient  for  this  purpose  ;  for  it  may  be 
only  voidable,  and  not  void ;  in  which  case,  a  stranger  shall  not 
object  to  it.*  But  a  release  by  a  guardian  ad  litem,^  or  by  a  pro- 
chein  ami/,  or  by  an  attorney  of  record,*^  is  not  good.  A  surety 
may  always  render  the  i)rincipal  a  competent  witness  for  himself, 
by  a  release.'^  And  it  seems  sufficient,  if  only  the  costs  are  re- 
leased.^ 

§  428.  Though  there  are  no  interests  of  a  disqualifying  nature 
but  what  may,  in  some  manner,  be  annihilated,^  yet  there  are 
some  which  cannot  be  reached  by  a  release.     Such  is  the  case  of 


1  Duke  V.  Pownall,  1  M.  &  Malk.  430 ;  »  Jackson  v.  Galloway,  8  C.  &  P.  480. 

Eansom  i-.  Keyes,  9  Cowen,  128.     So,  in  *  Rogers    v.    Berry,    10    Johns.    132; 

otiier   cases   of   liability   to  contribution.  Walk<>r  v.  Eerrin,  4  Verm.  52:3. 
P>ayley  r.  Osborn,  2  Wend.  527 ;  Kobert-  ^  Eraser   v.   IS'larsli,    2    Stark.    R.   41; 

son  V.  Smitli,  18  .Jolms.  45'.»;  Gibbs  r.  Bry-  "Walker  v.  Ferrin,  ub.  sup. 
ant,  1   Pick.  118;  Ame.-!  r.  Witliington,  o  "  Murray    v.    House,    11    Johns.   4G4; 

N.  llanii).  115  ;  Carleton  r.  Witclier,  5  N.  Walker  r.  Ferrin,  ub.  sup. 
Hanip.    lyG.     One  of  several  copartners,  '<  Keetl   v.   Boardman,    20  Pick.   441 ; 

not  being  sued  with  them,  may  be  ren-  Harmon  v.  Arthur,  1  Bail.  83 ;  Will.ard  v. 

dered  a  competent  witness  for  them  by  Wickman,  7  Watts,  292. 
tiieir  release.      Lefferts    r.    De   Mott,  2"l  **  IVrryman  v.  Steggal,  5  C.  &  P.  197. 

Wend.    13(5   (sed   vide   Cline  v.  Little,  5  See  also  Van  Shaack  y."" Stafford,  12  Pick. 

lUackf  48()) ;  but  i/u(rre,  if  he  ought  not  565. 

also  to  release  to  them  his  interest  in  the  ^  In  a  writ  of  entry  by  a  mortgagee, 

assets  of  the  firm,  so  far  as  they  ma3-  be  the  tenant  claimed,  under  a  deed  from  the 

artected  by  the  demand  in  controversy  ?  mortgagor,  subseciuent  in  date,  but  prior 

lb.  in  registration,  and  denied  notice  of  the 

■•^  Waite  V.  Merrill,  4  Greenl.  102 ;  Rich-  mortgage.  To  prove  that  he  purchased 
ardson  v.  Freeman,  (J  Greenl.  57;  1  Holt's  with  notice,  tlie  mortgagor  was  admitted 
Cas.  430,  note ;  Anderson  v.  Brock,  3  a  competent  witness  for  the  mortgagee, 
Greenl.  243.  The  heir  is  rendered  a  com-  the  latter  having  released  him  from  so 
petent  witness  for  the  administrator,  by  mucli  of  the  debt  as  should  not  be  satisfied 
releasing  to  the  latter  all  his  interest  in  by  the  land  mortgaged,  and  covenanted  to 
the  action ;  provided  it  does  not  apjjcar,  resort  to  the  land  as  the  sole  fund  for  pay- 
that  there  is  any  real  estate  to  l)e  affected  Tuent  of  the  debt.  Howard  r.  Chadbourne, 
by  the  result.  Boynton  v.  Tiu-ner,  13  5  Greenl.  15. 
Mass.  391. 


468  LAW   OF    EVIDENCE.  [PART   III. 

one,  having  a  common  right,  as  an  inhabitant  of  a  town ;  for 
a  release  by  him,  to  the  other  inhabitants,  will  not  render  him  a 
competent  witness  for  one  of  them,  to  maintain  the  connnon 
right. ^  So,  where  in  trover,  the  jdaintiff  eUiinied  the  cliattel  by 
])urchase  fnnn  B.,  and  the  defendant  claimed  it  under  a  purchase 
from  W.,  who  had  previously  ]jought  it  from  B.,  it  was  lield  tliat 
a  release  to  B.  from  the  defendant  w(juld  not  render  him  a  com- 
petent witness  for  the  latter ;  for  the  defendant's  rejucdy  was  not 
against  B.,  but  against  W.  alone.^  And  in  the  case  of  a  covenant 
real,  running  with  the  land,  a  release  by  the  covenantee,  after 
he  has  parted  with  the  estate,  is  of  no  avail ;  no  person  but  the 
present  owner  being  competent  to  release  it."^  Where  the  action 
is  against  the  surety  of  one  wllo  has  since  become  bankrupt,  the 
bankrupt  is  not  rendered  a  competent  witness  for  the  surety,  by 
a  release  from  him  alone  ;  because  a  judgment  against  the  surety 
would  still  give  him  a  right  to  prove  under  the  commission.  Tlie 
surety  ought  also  to  release  the  assignees  from  all  claim  on  the 
bankrupt's  estate,  it  being  vested  in  them ;  and  the  bankrupt 
should  release  his  claim  to  the  surplus.*  So,  a  residuary  legatee 
is  not  rendered  a  competent  witness  for  the  executor,  wlio  sues 
to  recover  a  debt  due  to  the  testator,  merely  liy  releasing  to  the 
executor  his  claim  to  that  del)t ;  for,  if  the  action  fails,  the  estate 
will  still  be  liable  for  the  costs  to  the  plaintiff's  attorney,  or  to  the 
executor.  The  witness  must  also  release  the  residue  of  the  estate  ; 
or,  the  estate  must  be  released  from  all  claim  for  the  costs.^ 

§  429.  It  is  not  necessary  that  the  release  be  actually  delivered  by 
the  releasor  into  the  hands  of  the  releasee.  It  may  be  deposited 
in  court,  for  the  use  of  the  absent  party.^  Or,  it  may  be  delivered 
to  the  wife,  for  the  use  of  the  Imsband.''  But  iu  such  cases  it  has 
been  held  necessary  that  the  delivery  of  the  release  to  a  third 
person  should  be  known  to  the  witness  at  the  time  of  giving  his 

1  Jacobson  v.  Fountain,  2  Johns.  170 ;  the  assijrnee  of  all  claims  against  him  as 
Abby  V.  Goodrich,  3  Day,  \'6'i  ;  supra,  §  such  assignee.  Greene  v.  Durfee,  6  Cush. 
405.  3G2.] 

2  Radburn  v.  IMorris,  4  Bing.  649.  ^  Baker  v.  Tyrwliitt,  4  Campb.  27. 

8  Leigliton  c  Perkins,  2  N.  Ilamp.  427;  ^  Perry  v.  Fleming,  2  N.  Car.  Law  Be- 

Pile  V.  iiciiham,  3  Ilayw.  176;  [Field  v.  ])os.  4rj8;    Lilly   v.  Kitzmillcr,   1   Yeates, 

Snell,  4  Cush.  504,  506  ;  Clark  ;;.  Julmson,  Jid  ;  Matthews  r.  Marchant,  3  Dev.  &  Bat. 

5  Day,  373;    Cunningliam,   1  Barb.  300,  40;  Brown,  c.  Brown,  5  Ala.  508.     Or,  it 

405.]  may  be  delivered  to  the  attorney.     Ste- 

■»  Ferryman   n.    Steggal,  8  Bing.  369.  venson  r.  Mudgett,  10  N.  Ilamp.  308. 

JAn  insolvent  debtor,  who  has  obtained  "  Van  Deusen  r.  Frink,  15  Pick.  449; 

'  iiis  discliarge,  is  a  competent  witness  for  Peaceable  v.  Keep,  1  Yeates,  576. 
the  assignee,  on  his  giving  a  release  to 


CHAP.  II.]  COMPETENXT   OF   WITiNESSES.  4G9 

testimony.^  The  objection  of  interest,  as  before  remarked,  pro- 
ceeds on  the  presumption  that  it  may  bias  the  mind  of  the  witness  ; 
but  this  presumption  is  taken  away  by  proof  of  his  having  done  all 
in  his  power  to  get  rid  of  the  interest.^  It  has  even  been  held, 
that  where  the  defendant  has  suffered  an  interested  witness  to  be 
examined,  oii  the  undertaking  of  the  plaintiff's  attorney  to  execute 
a  release  to  him  after  the  trial,  which,  after  a  verdict  for  the  plain- 
tiff, he  refused  to  execute,  this  was  no  sufficient  cause  for  a  new 
trial ;  for  the  witness  had  a  remedy  on  the  undertaking.-"'  But  the 
witness,  in  such  cases,  will  not  be  permitted  to  proceed  with  his 
testimony,  even  while  the  attorney  is  preparing  or  amending  the 
release,  without  the  consent  of  the  adverse  party.* 

§  480.  There  are  other  modes,  besides  a  release,  in  which  the 
competency  of  an  interested  witness  may  be  restored.  Some  of 
tliesc  modes,  to  be  adopted  by  the  witness  himself,  have  already 
been  adverted  to ;  °  namely,  where  he  has  assigned  his  own  in- 
terest, or  done  all  in  his  power  to  assign  it ;  or,  where  he  refuses 
to  accept  a  release  tendered  to  him  by  another.  So,  where,  being 
a  legatee  or  distributee,  he  has  been  fully  paid.^  An  indorser  is 
made  a  competent  witness  for  the  indorsee,  by  striking  off  his 
name  from  the  back  of  the  note  or  bill ;  but  if  the  bill  is  drawn 
in  sets,  it  must  appear  that  his  name  is  erased  from  each  one  of 
the  set,  even  though  one  of  them  is  missing  and  is  supposed  to  be 
lost ;  for  it  may  be  in  the  hands  of  a  bond  fide  holder.'^  A  guar- 
antor, also,  is  rendered  a  competent  witness  for  the  creditor,  by 
delivering  up  the  letter  of  guaranty,  with  permission  to  destroy 
it.^  And  this  may  be  done  by  the  attorney  of  the  party,  his  rela- 
tion as  such  and  the  possession  of  the  paper  being  sufficient  to 
justify  a  presumption  of  authority  for  that  purpose.^  The  bail  or 
surety  of  another  may  be  rendered  a  competent  witness  for  him, 
as  we  have  already  seen,  by  substituting  another  jicrson  in  his 
stead ;  which,  where  the  stipulation  is  entered  into  in  any  judicial 
proceeding,  as  in  the  case  of  l)ail  and  the  like,  the  court  will  order 

1  Seymour  v.  Strong,  4  Hill,  R.  225.  *  Doty  v.  Wilson,  1-1  Johns.  378. 
Wliether  the  belief  of  the  witness  as  to  his  ^  Sii/mi,  §  419. 

interest,  or  the  impression  under  which  he  ''  Clarke   c.    Gannon,    Ry.    &  M.   31 ; 

testifies,  can  go  farther  than  to  atlect  the  Gehhardt  v.  Shindle,  15  S.  i!i  R.  235. 

credibility  of  his   testimony,  quare;  and  "  Steinmetz  v.  Currie,  1  Uall.  2(J9. 

see  sujtra,  §§  3b!7,  388,  41'J.  *  Merchants'  Bank  v.  Spicer,  6  Wend. 

2  Goodtitle   i'.  Welford,  1  Doug.  139,  543. 

141,  per  Ashhnrst,  J.  "  Ibid;  Watson  v.  McLaren,  19  Wend. 

3  Hemming  v.  English,  1  Cr.  M.  &  R.     557. 
5G8 ;  6  Tyrwh.  185,  s.  c. 

VOL.  I.  *  40 


470  LAW   OF    EVIDENCE.  [PART   III. 

Upon  motion.  The  same  may  be  done  by  depositing  in  court 
a  sufficient  sum  of  money ;  or,  in  the  case  of  bail,  by  a  surrender 
of  the  body  of  the  principal.^  So,  where  the  liability,  which  woidd 
have  rendered  the  witness  incompetent,  is  discharged  by  the  opera- 
tion of  law ;  as,  for  examjjle,  by  the  bankrupt  or  the  insolvent 
laws,  or  by  the  statute  of  limitations.^  AVhere,  in  trespass,  several 
justifications  are  set  up  in  bar,  one  of  which  is  a  prescriptive  or 
customary  right  in  all  the  inhabitants  of  a  certain  place,  one  of 
those  inhabitants  may  be  rendered  a  competent  witness  for  the 
defendant,  by  his  waving  that  branch  of  the  defence.^  In  trover 
by  a  bailee,  he  may  render  the  bailor  a  competent  witness  for 
him,  by  agreeing  to  allow  him,  at  all  events,  a  certain  sum  for  the 
goods  lost.*  The  assignee  of  a  chose  in  action,  who,  having  com- 
menced a  suit  upon  it  in  the  name  of  the  assignor,  has  afterwards 
sold  and  transferred  his  own  interest  to  a  stranger,  is  thereby 
rendered  a  competent  witness  for  the  plaintiff.^  But  the  interest 
Avhich  an  informer  has  in  a  statute  penalty  is  held  not  assignaljle 
for  that  purpose.^  So,  the  interest  of  a  legatee  being  assigned, 
he  is  thereby  rendered  competent  to  prove  the  will ;  though  the 
payment  is  only  secured  to  him  by  bond  which  is  not  yet  due.'^ 
So,  a  stockholder  in  any  money-corporation  may  be  rendered  a 
competent  witness  for  the  corporation,  by  a  transfer  of  his  stock, 

j  either  to  the  company  or  to  a  stranger ;  even  though  he  intends 
to  repossess  it,  and  has  -assigned  it  merely  to  qualify  himself  to 
testify  ;   provided  there  is  no  agreement  between  him   and   the 

!  assignee  or  purchaser  for  a  reconveyance.^  Where  a  witness  was 
liahle  to  the  ijlainBITs  attorney  for  the  costs,  and  the  attorney  had 
])reparcd  a  release,  in  order  to  restore  his  competency  in  case  it 
should  be  questioned,  but  no  objection  being  made  to  the  witness, 

1  Supra,  §  392,  note  (1 ) ;  Bailey  v.  Hole,         *  Maine  Stage  Co.  v.  Longlcy,  2  Sliepl. 

3  C.  &  P.  560;   1  Mood.  &  M.  289,  .s.  c;  444. 

Leggett  i;.  Boyd,  3  Wend.  370  ;  Tompkins         ^  Soulden  v.  Van  Rensselaer,  9  Wend. 

V.  Curtis,  3  Cowen,  251 ;  drey  v.  Yoiing,  293. 

1  Harper,  38  ;  Allen  r.  Hawks,  13  Picli.  'J  Commonwealth   v.   Ilargesheimer,  1 

79;  Eeckley   v.  Freeman,  15  Pick.  4iJ8;  Ashm.  413. 

Pearcey  v.  I'leining,  5  C.  &  P.  503 ;  Lees  '  Mcllroy  v.  Mcllroy,  1  Rawle,  423. 

r.  Smith,  1  M.  &  Rob.  329;  Corastoek  v..        ^  Gilbert  v.   Manchester  Iron    Co.  11 

Paie,    3    Rob.   Louis.    R.  440;   Fraser  v.  Wend.  627;  Utica  Ins.  Co.  ?•.  Cadwell,  3 

Harding,  3  Kerr,  94.  Wend.  296;  Stall  v.  The  Catskill  Bank,  18 

'•^.Murray   v.   Judah,   6    Cowen,   484;  Wend.  466;  Bank  of  Utica,  t;.  Smalley,  2 

Ludlow  V.   Union  Ins.  Co.  2  S.  &  R.  119;  Cowen,  770;    Bell  v.  Hull,  &c.,  Railway 

United  States  w.  Smith,  4  Day,  121  ;  Quim-  Co.  6  M.  &  W.  701;  Illinois  Ins.  Co.  v. 

hv  V.  Wroth,  3  H.  &  J.  249;  Murfay  v.  Marseilles  Co.  1  Gilm.  236;  Union  Bank 

:\Iarsh,  2  Hayw.  200.  v.  Owen,  4  Humph.  388. 

8  Prewitt  V.  Tilly,  1  C.  &  P.  140. 


CHAP.  II.]  COMPETENCY   OP   WITNESSES.  471 

he  was  examined  for  the  plaintiff  without  a  release,  this  was  con- 
sidered as  a  gross  imposition  upon  the  court ;  and  in  a  subsequent 
action  by  the  attorney  against  tlie  witness,  for  his  costs,  he  was 
nonsuited.^  ^  These  examples  are  deemed  sufficient  for  the  purpose 
of  illustrating  this  method  of  restoring  the  competency  of  a  witness 
disqualified  by  interest. 

2  ■Williams  v.  Goodwin,  11  Moore,  342. 


472  LAW   OF  EVIDENCE.  [PART   III. 


CHAPTER    III. 


OF   THE   EXAMINATION   OF  WITNESSES. 

[*  §  431.  The  mode  of  examination  in  discretion  of  judge. 

432.  Witnesses  may  be  examined  apart  from  each  other. 

433.  Party  calling  first  examines  ;  the  other  then  cross-examines. 

434.  Leading  questions  not  allowed  on  direct  examination.     Facts,  and  not  opin- 

ions. 
434a.  Summary  of  some  of  the  late  cases. 

435.  Leading  questions  allowed  on  direct  examination,  in  discretion  of  the  court 

436.  Witness  may  refi-esh  his  memory  by  writings. 

437.  Different  circumstances  under  which  such  writings  resorted  to. 

438.  Such  writings  should  be  nearly  contemporaneous  with  the  transaction. 

439.  Papers  may  be  read  over  to  blind  witness,  &c. 

440.  Upon  what  subjects  witnesses  may  express  opinions. 
440a.  Analysis  of  recent  cases  upon  the  point. 

4406.  A  prejudiced  witness  more  reliable  as  to  facts  than  opinions. 

441.  The  opinions  of  witnesses  not  admissible  upon  general  questions  of  moral 

duty  and  conduct,  but  as  to  duty  in  particular  business. 

442.  Party  not  allowed  to  discredit  his  own  witness. 

443.  But  he  may  prove  the  fact  otherwise. 

444.  How  far  it  is  competent  to  discredit  the  party's  own  witness  by  proving  con- 

tradictory statements  made  elsewhere. 
444a.  You  may  inquire  of  the  witness  in  respect  to  them,  but  cannot  contradict 
him  by  his  own  statements. 

445.  Where  a  witness  gives  any  testimony,  he  may  be  cross-examined  by  the 

other  party  as  to  the  whole  case. 

446.  Cross-examination  a  valuable  test  of  witness's  fidelity. 

447.  This  right  extends  to  the  whole  ti-ial,  even  where  the  party  recalls  his  ad- 

versarj^'s  witness. 

448.  Testimony  restricted  to  the  issue. 

449.  On  cross-examination  a  wider  range  allowed. 

450.  State  of  witness's  feeling  towards  party  a  material  inquiry. 

451.  Not  compellable  to  criminate  himself. 

451a.  Statement  of  the  rule  according  to  recent  cases. 

452.  Not  excused  from  testifying  merely  against  his  own  interest. 

453.  Witness  not  obliged  to  give  testimony  exj)osing  him  to  forfeiture  of  estate. 

454.  Not  excused  from  giving  testimony  material  to  issue  because  it  will  tend  to 

degrade  witness. 

455.  456.  Witness  may  be  compelled  to  give  answer,  in  all  cases,  which  merely 

tends  to  disgrace. 
457.  Witness  cannot  be  asked  if  he  has  suffered  punishment. 


CHAP.  III.]  EXAMINATION   OF   WITNESSES.  473 

§  458.  Questions  tending  merely  to  disgrace  witness,  and  not  to  affect  credibility, 
clearly  inadmissible. 
459.  How  far  witness  may  be  asked  questions  tending  to  lower  his  credit. 

400.  Counsel  cannot  insist  ui)on  asliing  questions  which  witness  is  not  obliged  to 

answer. 

401.  May  be  impeached  by  general  testimony  of  bad  character. 

462.  So  also  by  showing  that  he  has  made  contradictory  statements. 

463.  Cannot  be  examined  as  to  contents  of  letter  not  in  evidence. 

404.  Loss  of  paper  proved  before  witness  cross-examined  as  to  contents. 

465.  How  far  witness  may  be  asked  if  he  has  given  a  diflerent  accoujit,  either 

orally  or  in  writing.  • 

400.  When  the  party  may  cross-examine  as  to  paper. 

407.  Ke-exammation  only  extends  to  subject-matter  of  cross-examination. 

408.  And  this  rule  obtains  where  the  cross-examination  is  upon  matters  not  ma- 

terial to  the  issue. 

409.  Witness  attempted  to  be  discredited  on  cross-examination  may  be  sustained 

by  general  proof  of  good  character.] 

§  431.  LEAVING  thus  treated  of  the  means  of  procuring  the 
attendance  of  witnesses,  and  of  their  competency,  we  come  now  to 
consider  the  manner  in  which  they  are  to  be  examined.  And 
here,  in  the  first  place,  it  is  to  be  observed,  that  the  subject  lies 
chiefly  in  the  discretion  of  Jhe  judge,  before  whom  the  cause  is 
tried,  it  being  from  its  very  nature  susceptible  of  but  few  positive 
and  stringent  rules.  The  great  object  is  to  elicit  the  truth  from 
the  witness  ;  but  the  character,  intelligence,  moral  courage,  bias, 
memory,  and  other  circumstances  of  witnesses  are  so  various,  as 
to  require  almost  equal  variety  in  the  manner  of  interrogation, 
and  the  degree  of  its  intensity,  to  attain  that  end.  Tliis  manner 
and  degree,  therefore,  as  well  as  the  other  circumstances  of  the 
trial,  must  necessarily  be  left  somewhat  at  large,  subject  to  tlie  few 
general  rules  which  we  shall  proceed  to  state ;  remarking  only, 
that  wherever  any  matter  is  left  to  the  discretion  of  one  judge, 
his  decision  is  not  subject  to  be  reversed  or  revised  by  another. 

§  432.  If  the  judge  deems  it  essential  to  the  discovery  of  truth, 
that  the  witnesses  should  be  examined  out  of  the  hearing  of  each 
other,  he  will  so  order  it.  This  order,  upon  the  motion  or  sug- 
gestion of  either  party,  is  rarely  withheld;  but,  by  the  weight 
of  authority,  the  party  does  not  seem  entitled  to  it  as  a  matter  of 
riglit.!^    The  course  in  such  cases  is  either  to  require  the  names  of 

1  In  Rex  V.  Cooke,  13  Howell,  St.  Tr.  Vaughan,  Id.  494,  and  by  Sir  Michael 
348,  it  was  declared  by  Lord  C.  J.  Treby  Foster,  in  Hex  r.  Goodere,  17  Howell,  St. 
to  be  grantahle  of  favor  only,  at  the  dis-  Tr.  lUlo.  See  also  1  Stark.  Kvid.  103; 
cretion  of  the  court,  and  this  opinion  was  Beamon  r.  Ellice,  4  C.  &  P.  585,  per  Taun- 
foUowed  by  Ld.   C.  J.  Holt,  in  Kex   v.    ton,  J. ;  The  State  v.  Sparrow,  3  Murphy, 

40* 


474 


LAW   OF   EVIDENCE. 


[part  hi. 


the  witnesses  to  be  stated  by  the  counsel  of  the  respective  parties, 
by  whom  they  were  summoned,  and  to  direct  the  sheriff  to  keep 
tliem  in  a  separate  room  until  they  are  called  for ;  or,  more  usually, 
to  cause  them  to  withdraw,  by  an  order  from  the  bench,  accompa- 
nied with  notice,  that  if  they  remain  they  will  not  be  examined. 
In  the  latter  case,  if  a  witness  remains  in  court  in  violation  of  the 
order  even  liy  mistake,  it  is  in  the  discretion  of  the  judge,  whcthei 
or  not  lie  shall  be  examined.^  The  course  formerly  was  to  exclude 
him;  and  this  is  still  the  inflexible  rule  in  the  exchequer  in 
revenue  cases,  in  order  to  prevent  any  imputation  of  unfairness 
in  proceedings  between  the  crown  and  the  subject.  But  with  this 
exception,  the  rule  in  criminal  and  civil  cases  is  the  same.^  But 
an  attorney  in  the  cause,  whose  personal  attendance  in  court  is 
necessary,  is  usually  excepted  from  tlie  order  to  withdraw.^  The 
right  of  excluding  witnesses  for  disobedience  to  such  an  order, 
though  well  established,  is  rarely  exercised  in  America ;  *  but  the 
witness  is  punishable  for  the  contempt. 


E.  487.  The  rule  is  stated  by  Fortescue, 
in  these  words  :  Et  si  necessitjis  exegerit, 
dividantur  testes  luijusmodi,  donee  ipsi 
deposuerint  quicquid  velint,  ita  quod  dic- 
tum unius  non  docebit  aut  concitavit 
corum  aUura  ad  consimiliter  testifican- 
dum. Fortesc.  De  Laud.  Leg.  Angi.  c. 
26.  This,  however,  does  not  necessarily 
exclude  tiie  riglit  of  the  court  to  deter- 
mine whetiier  tliere  is  any  need  of  a  sepa- 
rate examination.  Mr.  Phillips  states  it 
only  as  the  uniform  course  of  practice, 
that  "  the  court,  on  the  application  of 
counsel,  will  order  the  witnesses  on  both 
sides  to  withdraw."  '2  Phil.  Evid.  3'J5. 
And  see,  accordingly,  Williams  v.  Hnllie, 
1  Sid.  131 ;  Swift  on  Evid.  512.  In  Tay- 
lor V.  Lawson,  3  C.  &  P.  543,  Best,  C.  J., 
regretted  that  the  rule  of  parliamentary 
practice,  wliicli  excludes  all  witnesses  but 
the  one  under  examination,  was  not  uni- 
versally adopted.  But  in  Southey  v.  Nash, 
7  C.  &  P.  632,  Alderson,  U.,  expressly 
recognized  it  as  "  the  right  of  either  party, 
at  any  moment,  to  require  that  the  unex- 
amined witnesses  shall  leave  the  court." 
It  is  a  general  rule  in  the  Scotch  law,  that 
witnesses  sliould  be  examined  separately ; 
and  it  is  founded  on  the  importance  of 
having  the  story  of  each  witness  fresh 
from  his  own  recollection,  lunniugled  with 
the  impression  receiveil  from  hearing  the 
testimony  of  others  in  the  same  case.  To 
this  rule,  an  exception  is  allowed  in  the 
case  of  medical  witnesses  ;  but  even  those, 
on  matters  of  medical  opinion,  are  exam- 


ined apart  from  each  other.  See  Alison's 
Practice,  pp.  542-545 ;  Tait  on  Evid.  420 ; 
[Nelson  v.  State,  2  Swan.  237 ;  Benaway 
V.  Conyne,  3  Chand.  214.]  [*The  rule 
does  not  extend  to  the  party,  who  has  a 
right  to  remain  in  court  for  the  purpose  of 
instructing  counsel.  SeLfe  v.  Isaacson,  1 
F.  &  F.  1U4.] 

1  It  has,  however,  been  held,  that  if 
the  witness  remains  in  court,  in  disobe- 
dience of  its  order,  his  testimony  cannot, 
on  that  ground  alone,  be  excluded ;  but 
that  it  is  matter  for  observation  on  his  evi- 
dence. Chandler  v.  Home,  2  M.  &  Rob. 
423.  As  to  the  rule  in  the  text,  see  The 
State  V.  Brookshire,  2  Ala.  303,  ace. 

^  Attorney-Gen.  v.  Bulpit,  9  Price,  4; 
Parker  v.  McWilliam,  6  Bing.  683;  4 
JMoore  &  Pavne,  480,  s.  c. ;  Thomas  v. 
iJavid,  7  C.  &  P.  350 ;  Rex  v.  Colley,  1  M. 
&  xMalk.  32') ;  Beamon  v.  EUice,  4  C.  &  P. 
585,  and  note  (b) ;  [McLean  v.  State,  16 
Ala.  672.] 

«  Everett  v.  Lowdham,  5  C.  &  P.  91 ; 
Pomeroy  v.  Badderley,  Ry.  &  M.  430.  [So 
it  is  ordinarily  with  experts,  and  witnesses 
called  as  to  character,  &c.  And  in  those 
states  in  which  parties  are  nuule  compe- 
tent witnesses,  it  would  seem  that  the 
order  of  exclusion  should  not  include 
them ;  and  it  is  the  better  practice  as  a 
general  rule  in  those  states,  so  far  as  it  is 
known  to  be  estiiblished,  when  the  wit- 
nesses in  a  case  are  ordered  to  withdraw, 
to  except  parties  from  the  order.] 

*  See   Anon.    1   IliU,   254,   256;    The 


CHAP.  III.]  EXAMINATION   OF   WITNESSES.  475 

§  433.  When  a  witness  has  been  duly  sworn,  and  his  competency 
is  settled,  if  objected  to,^  he  is  first  examined  by  the  party  j^ro- 
ducing-  him ;  wiiich  is  called  his  direct  examination.  He  is  after- 
wards examined  to  the  same  matters  by  the  adverse  party ;  which 
is  called  his  cross-examination.  These  examinations  are  conducted 
orally  in  open  court,  under  the  regulation  and  order  of  the  judge 
and  in  his  presence  and  that  of  the  jury,  and  of  the  parties  and 
their  counsel. 

§  434.  In  the  direct  examination  of  a  witness,  it  is  not  allowed 
to  put  to  Tiim  wKat  are  termedTIea^m^  questions  ;  thatj  is,  questions 
wTiieh  suggest  to  the  witness  the  answer  desired.^  The  rule  is 
to  be  understood  in  a  reasonable  sense  ;  for  if  it  were  not  allowed 
to  approach  the  points  at  issue  by  such  questions,  the  examinations 
would  be  most  inconveniently  protracted.  To  abridge  the  proceed- 
ings, and  bring  the  witness  as  soon  as  possible  to  the  material  }X)ints 
on  which  he  is  to  speak,  the  counsel  may  lead  him  on  to  that  length, 
and  may  recapitulate  to  him  the  acknowledged  facts  of  the  case 
which  have  been  already  established.  The  rule,  therefore,  is  not 
applied  to  that  part  of  the  examination,  which  is  merely  introductory 
of  that  which  is  material.  Questions  are  also  objectionable,^  as 
leading,  which,  embodying  a  material  fact,  admit  of  an  answer  by  a 
simple  negative  or  affirmative.  An  argumentative  or  pregnant 
course  of  interrogation  is  as  faulty  as  the  like  course  in  pleading. 
The  interrogatory  must  not  assume  facts  to  have  been  proved,  whicli 
have  not  been  proved ;  nor,  that  particular  answers  have  been 
given,  Avhich  have  not  been  given.^  The  witness,  except  in  certain 
cases  hereafter  to  be  mentioned,  is  to  be  examined  only  to  matters 
of  fact  within  his  own  knowledge,  whether  they  consist  of  words 
or  actions ;  and  to  these  matters  he  should  in  general  be  plainly, 
directly,  and  distinctly  interrogated.  Inferences  or  conclusions, 
which  may  be  drawn  from  facts,  are  ordinarily  to  be  drawn  by  the 

State  V.  Sparrow,  3  Murph.  487;  The  cause,  or  concern  in  cnnductinfr  it;  to- 
State  V.  Brookshire,  2  Ala.  303;  Dyer  r.  "letlier  with  liis  af^e,  ami  whether  he  is 
Morris,  4  Mis.  '214;  Keath  v.  Wilson,  0  married  or  not,  and  the  degree  of  his  rela- 
Mis.  435  ;  [Pleasant  v.  State,  15  Ark.  624;  tionsliip  to  the  party  adducing  liim.  Tait 
Sartorious  v.  State,  24  Miss.  G02;  Porter  v.  on  Evid.  424. 

State,  2  Carter,  4;J5.]  -  Snyder  v.  Snyder,  6  Binn.  483;  Ilar- 

1  The  course  in  the  Scotch  courts,  after  risx)n  v.  Howan,  3  Washinjj:t.  580  :  Parkin 

a  witness  is  sworn,  is,  first  to  examine  him  v.  Moon,  7  C.  &  P.  408  ;  Alison's  Practice, 

in  inifidlilius,  namely,  whether  he  has  been  545  ;  Tait  on  Evid.  427. 
instructed  what  to  say,  or  litis  received  or  ^  Hill  v.  Coombe,  1   Stark.  Evid.  163, 

has  been  promised  any  good  deed  tor  what  note  (qcj.) ;  Ilandley  v.  Ward,  Id. ;  Tumey 

he  is  to  say,  or  bears  any  ill-will  to  the  ad-  v.  The  State,  8  Sm.  &  Marsh,  104. 
verse  party,  or  has  any  interest  in  tho 


476  LAW    OF   EVIDENCE.  [PART   III. 

jury  alone ;  except  -where  tlic  conclusion  is  an  inference  of  skill 
and  judgment ;  in  which  case  it  may  be  drawn  by  an  expert,  and 
testified  by  him  to  the  jury.^ 

[  *  §  434a.  There  is  probably  no  rule  of  practice  more  habitually 
violated  by  counsel  in  the  examination  of  witnesses,  than  that 
questions  should  not  he  leadinj^.  It  is  rather  an  exception  to  find 
questions  so  framed  as  to  elicit  the  knowledge  of  witnesses,  with- 
out intimating  the  desire  of  the  examiner.  But  no  one  can  fail  to 
perceive,  that,  when  that  is  done  skilfully,  it  adds  great  weight  to 
tlie  testimony.  In  New  Hampshire,  it  is  said  that  a  question  to  be 
leading  nuist  instruct  the  witness  how  to  answer  ;  or  put  words  into 
his  mouth  to  be  echoed  back ;  or  in  some  way  suggest  the  answer 
desired:-  and  tliat  a  question  calling  for  a  direct  affirmative  or 
negative  is  not  leading  unless  it  suggest  one  more  than  the  other .^ 
Tlie  matter  is  considerably  discussed  in  a  modern  case  in  Penn- 
sylvania.* And,  in  another  casc'^  there,  it  was  said  that  an  inquiry, 
whether  a  person  by  name  showed  him  where  the  corner  of  land 
was,  is  not  leading.  It  may  be  in  a  sense  leading,  but  not  within 
the  rule  of  exclusion,  since  it  was  merely  inducement,  and  in  itself 
of  no  importance.  It  is  best  such  questions  should  be  i)ut  in  a 
leading  form  to  save  time.  But  the  main  inquiry,  "  What  did  he 
show  you  as  the  corner  ? "  should  be  left  entirely  to  the  witness. 
A  person  cannot  be  allowed  to  discredit  his  own  witness  by  asking 
if  the  account  now  given  is  the  same  as  that  given  by  him  on  a 
former  occasion.^  Nor  can  one  assume,  in  framing  a  question 
to  his  witness,  the  existence  of  facts  not  proved.'^  The  pre- 
siding judge  may,  of  course,  interrogate  the  witnesses  in  any 
form  and  to  any  extent  he  may  deem  important  to  the  ends  of 
justice.^] 

§  435.  In  some  cases  however,  leading  questions  are  permitted, 
even  in  a  direct  examination  ;  namely,  Avhere  the  witness  appears 
to  be  hostile  to  the  party  producing  him,  or  in  the  interest  of  the 
other  party,  or  unwilling  to  give  evidence;^  or  where  an  omission 

1  1  Stark.  Evitl.  \')2;  Goodtitle  d.  Re-  ^  Commonwealth  v.  Galavan,  9  Allen, 

vett  V.  Britliain,  4  T.  R.  4'J7.  271.] 

^  Pa^'u  V.  I'arktT,  40  N.  II.  47.  »  Clarke  c.  Safferv,  Kr.  &  M.  126,  per 

8  I*  Spear  o.  Hicliardson,  37  N.  H.  23.  Best,  C.  J. ;  Kegina  i\  Chapman,  8  C.  &  T. 

*  Wilson  y.  McCuilough,  23  Penn.  St.  558;  Kegina  c.  Ball,  Id.  745;  Kegina  ;•. 
440.                                             •  Murphy,  Id.  297;  Bank  of  Xorth.  Liber- 

6  Kemmerer  ?'.  Edelman,  Id.  143.  ties  r.  i)avi.s,  U  Watts  &  Serg.  285 ;  Towns 

*  Sanchez  v.  People,  22  N,  Y.  Ct.  App.  v.  Altbrd,  2  Ala.  378.  Leading  questions 
147.  are  not  allowcMl  in  Scotland,  even  in  cross- 

^  Carpenter  v.  Ambroson,  20  111.  170.    examining.     Tait  on  Evid.  427 ;  Alison's 

Practice,  545. 


CHAP,  III.]  EXAMINATION   OF   WITNESSES.  477 

in  his  testimony  is  evidently  ^jaused  by  want  of  recollection,  which 
a  suggestion  may  assist.  Thus,  where  the  witness  stated,  that  he 
could  not  recollect  the  names  of  the  component  members  of  a 
firm,  so  as  to  repeat  them  without  suggestion,  Init  thought  he 
miglit  possibly  recollect  them  if  suggested  to  him,  this  was  per- 
mitted to  be  done.i  So,  where  the  transaction  involves  numerous 
items  or  dates.  So,  where,  from  the  nature  of  the  case,  the  mind 
of  the  witness  cannot  be  directed  to  the  subject  of  inquiry,  with- 
out a  particular  specification  of  it ;  as,  where  he  is  called  to 
contradict  another,  as  to  the  contents  of  a  letter  which  is  lost, 
and  cannot,  without  suggestion,  recollect  all  its  contents,  the 
particular  passage  may  be  suggested  to  him.^  So,  where  a  witness 
is  called  to  contradict  another,  who  had  stated,  that  such  and 
such  expressions  were  used,  or  the'  like,  counsel  arc  sometimes 
permitted  to  ask,  whether  those  particular  expressions  were  used, 
or  those  things  said,  instead  of  asking  the  witness  to  state  what 
was  said.^  AVhere  the  witness  stands  in  a  situation,  which  of 
necessity  makes  him  adverse  to  the  party  calling  him,  as,  for 
example,  on  the  trial  of  an  issue  out  of  chancery,  with  power  to 
the  plaintiff  to  examine  the  defendant  himself  as  a  witness,  he 
may  be  cross-examined,  as  a  matter  of  right.'^  Indeed,  when  and  { 
under  what  circumstances  a  leading  question  may  be  put,  is  a  i 
matter  resting  in  the  sound  discretion  of  the  court,  and  not 
a  matter  which  can  be  assigned  for  error.-^ 

1  Acerro  ct  al.  v.  Petroni,  1  Stark.  R.  much  of  the  practical  consequences  of  tlie 

100,  per  Lord  EUenborough.     [*  ISo  a  wit-  doctrines  he  lias  publislied  to  the  world." 

ness  who  denies  his  own   certificate,  or  Per  Pest,  C.  J.,  in  Ilovill  v.  Stephenson, 

stivtes  that  it  was  coUusively  made,  or  in  5  Bing.  493. 

any  other  mode  shows  an  interest  of  feel-         °  Moody  v.  Powell,  17  Pick.  498.     In 

ing  for  the  party  opposed  to  the  one  call-  this  case  the  law  on  this  point  was  thus 

ing  hiin,  may  be  examinetl  in  the  usual  stated  by  the  learneil  chief  justice  :  "  Tlie 

mode   of   cross-examination.      Martin    v.  court  have  no  doubt  that  it  is  within  the 

Travellers'  Ins.  Co.  1  F.  &  F.  505.J  discretion  of  a  judge  at  the  trial,  under 

-  Courteen  ?•.  Touse,  1"  Campb.  43 ;  i)articular  circumstances,  to  permit  a  lead- 
Edmonds  r.  AValter,  3  Stark.  K.  7.  ing  question  to  be  put  to  one's  own  wit- 

^  1   Stark.  Evid.  l.j"2.     Mr.  Phillips  is  ness  ;  as  when  he  is  manifestly  reluctant 

of  opinion  that   the  regular  mode  should  and    hostile   to  the    interest  of  the  party 

first   be  exhausted  in  such  cases,  before  calling  him,  or  wiiere  he  has  exhausted 

leading  questions  are  resorted  to.     I'hil.  his  memory,  without  stating  the  particu- 

&  Am.  on    Evid.  pp.  8y0,   891 ;   2   Phil,  lar  required,  where  it  is  a  proper  name,  or 

Evid.  404,  405.  other  fact  which  cannot  be  significantly 

■•  Clarke  r.  Saffery,  Ry.  &  M.  12G.  pointed  to  by  a  general  interrogatory,  or 
The  jxilicy  of  tlu'sc  rules,  as  well  as  of  where  the  witness  is  a  child  of  tender 
almost  all  other  rules  of  the  common  law  years,  whose  attention  can  be  called  to  the 
on  the  subject  of  evidence,  Is  controverted  matter  required,  only  by  a  ])ointed  or  lead- 
in  the  Rationale  of  Judicial  Evidence,  by  ing  question.  So  a  ju'lgc  may,  in  his  dis- 
Jereniy  Pentham  ; — "a  learned  writer,  cretion,  prohibit  certain  leading  <iuestions 
who  has  devoted  too  much  of  his  time  to  from  being  put  to  an  adversary's  witness, 
the    theory    of  jurisprudence,   to    know  where  the  witness  shows  a  strong  interest 


478 


LAW   OF   EVIDENCE. 


[r'AIlT   III. 


§  436.  Though  a  witness  can  testify  only  to  such  facts  as  are 
within  his  own  knowledge  and  recollection,  yet  he  is  permitted  to 
refresh  and  assist  his  memory,  hy  the  use  of  a  ivritten  instrument^ 
memorandum,  or  entry  in  a  book,  and  may  l)c  com])clled  to  do  so, 
if  the  writing  is  present  in  court.^  It  does  not  seem  to  be  neces- 
sary that  the  writing  should  have  been  made  by  the  ^^'itness  him- 
self, nor  that  it  should  be  an  original  writing,  provided,  after 
inspecting  it,  he  can  speak  to  the  facts  from  his  own  recollection.^ 
So  also,  where  the  witness  recollects  that  he  saw  the  paper  while 
the  focts  were  fresh  in  his  memory,  and  remembers  that  he  then 
knew  that  the  particulars  therein  mentioned  were  correctly  stated.'* 
And  it  is  not  necessary  that  the  writing  thus  used  to  refresh  the 
memory  should  itself  be  admissible  in  evidence ;  for  if  inadmis- 
sible ill  itself,  as,  for  want  of  a  stamp,  it  may  still  be  referred 
to  by  the  witness.*  But  where  the  witness  neither  recollects  the 
fact,  nor  remembers  to  have  recognized  the  written  statement  as 
true,  and  the  writing  was  not  made  by  him,  his  testimony,  so  far 


or  bias  in  favor  of  the  cross-examining 
party,  and  needs  only  an  intimation,  to  say 
wliatever  is  most  favorable  to  tliat  party. 
Tiie  witness  may  have  purposely  con- 
cealed such  bias  in  favor  of  one  Jiarty,  to 
induce  the  other  to  call  him  and  make  him 
his  witness ;  or  the  party  calling  him  may 
be  compelled  to  do  so,  to  prove  some  sin- 
gle fact  necessary  to  his  case.  This  dis- 
cretionary power  to  vary  the  general  rule, 
is  to  be  exercised  only  so  far  as  the  pur- 
poses of  justice  plainly  recjuire  it,  and  is  to 
be  regulated  by  the  circumstances  of  each 
case."  Ajid  see  Donnell  c.  Jones,  13  Ala. 
400.  [*  Walker  v.  Dunspaugh,  '20  N.  Y. 
(I)  Smith)  170.  But  when  it  is  so  exer- 
cised as  to  deprive  the  party  of  important 
evidence,  the  question  may  be  raised  on  ap- 
peal. Gunter  v.  Watson,  4  Jones,  Law. 
465.] 

1  Reed  v.  Boardman,  20  Pick.  441. 

2  Doe  V.  Perkins,  3  T.  R.  749,  ex- 
pounded in  Rex  c.  St.  ]\Iartin's,  Leicester, 
2  Ad.  &  El.  215 ;  Burton  v.  Plummer,  Id. 
341 ;  Burroughs  v.  Martin,  2  Campb.  112; 
Duchess  of  Kingston's  case,  20  Howell's 
St.  Tr.  (;i'J;  Henry  v.  Lee,  2  Chitty  R. 
124 ;  Rambert  v.  Cohen,  4  Esp.  213.  In 
Meagoe  i-.  Simmons,  2  C.  &  P.  75,  Lord 
Tenterden  observed,  that  the  usual  course 
was  not  to  permit  the  witness  to  refresh 
his  memory  from  any  paper  not  of  his  own 
writing.  And  so  is  the  Scotch  practice. 
Tait  on  Evid.  l.'5:5.  But  a  witness  has 
bi'i-n  allowed  to  refresh  his  memory  from 
the  notes  of  his  testimony,  taken  by  coun- 


sel at  a  former  trial.  Laws  v.  Reed,  2 
Lewin,  Cr.  Cas.  152.  And  from  his  depo- 
sition. Smith  r.  Morgan,  2  M.  &  Rob. 
25'J.  And  from  a  jirinted  copy  of  his  re- 
port. Home  V.  Mackenzie,  0  C.  &  Fin. 
G28.  And  from  notes  of  another  person's 
evidence,  at  a  former  trial  examined  by 
him  during  that  trial.  Regina  v.  IMiilpots, 
5  Cox,  Cr.  C.  829.  Or,  within  two  days 
afterwards.  Ibid,  per  Erie,  J.  But  the 
counsel  for  the  prisoner,  on  cross-exam- 
ining a  witness  for  the  prosecution,  is  not 
entitled  to  put  the  deposition  of  tlie  wit- 
ness into  his  hand,  for  the  purpose  of  re- 
freshing his  memory,  without  giving  it  in 
evidence.  Regina  v.  Ford,  Id.  184  ;  [s.  c. 
4  Eng.  Law  &  Eq.  576 ;  State  v.  Lull,  37 
.Maine,  24<).  But  where  a  witness,  whose 
deposition  hail  been  previously  taken,  was 
asked  in  cross-examination  what  he  had 
stated  in  the  deposition,  he  was  i)ermitted 
to  refresh  his  recollection  by  referring  to 
a  co[)v  of  the  deposition.  George  v.  Joy, 
10  X.  11.544. J 

•*  Burrough  v.  Martin,  2  Campb.  112; 
Burton  v.  I'lummer,  2  Ad.  &  El.  343,  per 
Lord  Denman  ;  Jacob  t\  Lindsay,  1  East, 
4tjtj ;  Downer  o.  Rowell,  24  Verm.  343. 
But  see  Butler  v.  Benson,  1  Barb.  Ch.  R. 
52ti;  [Seavy  v.  Dearborn,  ly  N.  II.  351; 
Webster  r.  Clark,  10  Foster,  245 ;  State  v. 
Colwell,  3  R.  I.  132.]  [*  Green  v.  Caulk, 
16  Md.  55(j.| 

•»  Maugham  v.  Hubbard,  8  B.  &  C.  14; 
Kensington  v.  Inglis,  8  East,  273  ;  supra, 
§§  yO,  228. 


CHAP.  III.]  EXAMINATION   OF   WITN^ESSES.  479 

as  it  is  founded  upon  the  written  paper,  is  but  hearsay ;  and  a  wit- 
ness can  no  more  be  permitted  to  give  evidence  of  liis  inference 
from  wliat  a  third  person  has  written,  than  from  what  a  tliird  jjcr- 
son  lias  said.i 

§  437.  The  cases  in  which  writings  arc  permitted  to  be  used  for 
this  purpose,  may  be  divided  into  three  classes.  (1.)  Where  the 
writing  is  used  only  for  the  purpose  of  assisting  the  memory  of 
the  witness.  In  this  case,  it  does  not  seem  necessary  that  the 
writing  should  he  produced  in  court,^  though  its  absence  may  afford 
matter  of  observation  to  the  jury ;  for  the  witness  at  last  testifies 
from  his  own  recollection.  (2.)  Wliere  the  witness  recollects 
having  seen  the  writing  before,  and  though  he  has  now  no  iiidc- 
pedent  recollection  of  the  facts  mentioned  in  it,  yet  he  remembers 
that,  at  the  time  he  saw  it,  he  knew  the  contents  to  be  correct. 
In  this  case,  the  writing  itself  must  be  produced  in  court,  in  order 
that  the  other  party  may  cross-examine ;  not  that  such  writing  is 
thereby  made  evidence  of  itself,  but  that  the  other  party  may 
have  the  benefit  of  the^witness's  refreshing  his  memory  by  every 
part.2  And  for  the  same  reason,  a  witness  is  not  permitted  to 
refresh  his  memory  by  extracts  made  from  other  writings.^  (3.) 
Where  the  writing  in  question  neither  is  recognized  by  the  witness 
as  one  which  he  remembers  to  have  before  seen,  nor  awakens  his 
memory  to  the  recollection  of  any  thing  contained  in  it ;  but,  never- 
theless, knowing  the  writing  to  be  genuine,  his  mind  is  so  con- 

1  2  Phil.  Evid.  413.  bound  to  read  it  in  evidence ;  and  may 

2  Ken.sin<,'-ton  v.  Inglis,  8  East,  273 ;  also  ask  the  witness  when  it  was  written, 
Burton  v.  J'lummer,  2  Ad.  &  El.  341.  without  being  bound  to  put  it  into  the 
[But  see  Harrison  v.  Middleton,  11  Gratt.  case.  Ke.x  r.  Ranisdeii,  2  C.  &  P.  603. 
527;  Howland  v.  Sherifi;  &c.,  5  Sandf.  The  American  courts  have  sometimes  car- 
219.]  ried   the    rule   farther    than   it  has  been 

3  Supra,  §§  115,  436 ;  Rex  v.  St.  Mar-  carried  in  England,  by  admitting  the 
tin's,  Leicester,  2  Ad.  &  El.  215,  per  Pat-  writing  itself  to  go  in  evidenco  to  the  • 
teson,  J. ;  Sinclair  v.  Stevenson,  1  C.  &  P.  jury,  in  all  cases  where  it  was  made  by 
582;  2  Bing.  516,  s.  c. ;  10  Moore,  46,  s.  c. ;  the  witness  at  tlie  time  of  the  fact,  for  the 
Loyd  V.  Frcshfield,  2  C.  &  P.  325  ;  8  D..&  purpose  of  preserving  tlie  memory  of  it, 
R.  19,  s.  c.  If  the  paper  is  shown  to  tlie  if,  at  tlie  time  of  tcstitying.  lie  caii  recol- 
witness,  directlj' to  prove  the  handwriting,  lect  nothing  further  than  that  he  had  ac-> 
it  ha^  been  ruled  that  the  other  party  lias  curately  reduced  the  whole  transaction  to 
not  therefore  a  right  to  use  it.  Sinclair  v.  writing.  Earniers'  and  Meciianics'  Bank 
Stevenson,  supra.  But  the  conti-ary  has  r.  Boraef  1  Rawie,  152;  Smith  v.  Lane, 
since  been  held,  by  Bosanquet,  J.,  in  Rus-  12  S.  &  R.  84,  per  Gibson,  J. ;  The  Stale 
sell  V.  Ryder,  6  C.  &  P.  416,  and  with  good  r\  Rawls,  2  Nott  &  McCord,  331 ;  Clark  r. 
reason;  for  the  adverse  party  has  a  right  A^trce,  15  Wend.  rj3;  ilerrill  r.  Ithaca  & 
to  cross-examine  the  witness  as  to  the  Oswego  Railroad  Co.  16  Wend.  5!S6,  5'J6, 
handwriting.  2  Phil.  Evid.  400.  But  if  597,  598  ;  Haven  i:  Wendell,  11  N.  Il'amp. 
the  counsel,  «n  cross-examination,  puts  a  112.  But  see  Lightner  v.  Wike,  4  S.  &  R. 
paiier  into  a  witness's  hand,  in  order  to  203 ;  [/;;//vf,  §  466.] 

refresh  his  memory,  the  opposite  counsel  ■*  Doe  c.  Perkins,  3  T.  R.  749;  2  Ad.  & 

has  a  right  to  look  at  it,  without  being    El.  215. 


480  l\w  of  evidence.  [part  hi. 

vinced,  Uiat  lie  is  on  that  gTuund  eiialiled  to  swear  positively  as 
to  the  fact.  An  example  of  this  kind  is,  where  a  banker's  clerk 
is  shown  a  bill  of  exchange,  which  has  his  own  writing  upon  it, 
from  which  he  knoAVS  and  is  able  to  state  positively  that  it  passed 
through  his  hands.  So,  where  an  agent  made  a  parol  lease,  and 
entered  a  memorandum  of  the  terms  in  a  book  which  was  pro- 
duced, but  the  agent  stated  that  he  had  no  memory  of  the  trans- 
action but  from  the  book,  without  which  he  should  not,  of  his  own 
knowledge,  be  able  to  speak  to  the  fact,  but  on  reading  the  entry 
he  had  no  doubt  that  the  fact  really  happened ;  it  was  held  suffi- 
cient.^ So,  where  a  witness,  called  to  prove  the  execution  of  a 
deed,  sees  his  own  signature  to  the  attestation,  and  says,  that 
he  is  therefore  sure  that  he  saw  the  party  execute  the  deed  ; 
that  is  sufficient  proof  of  the  execution  of  a  deed,  though  he  adds 
that  he  has  no  recollection  of  the  fact.^  In  these  and  the  like 
cases,  for  the  reason  before  given,  the  writing  itself  must  be  pro- 
duced.^ 

§  438.  As  to  the  time  tvhen  the  ivriting,  thus  used  to  restore  the 
recollection  of  facts,  should  have  been  made,  no  precise  rule  seems 
to  have  been  established.  It  is  most  frequently  said,  that  the 
writing  must  have  been  made  at  the  time  of  the  fact  in  question, 
or  recently  afterwards.*  At  the  farthest,  it  ought  to  have  been 
made  before  such  a  period  of  time  has  elapsed,  as  to  render  it 
probable  that  the  memory  of  the  witness  might  have  become  defi- 
cient.''^ But  the  jjractice,  in  this  respect,  is  governed  very  much 
by  the  circumstances  of  the  particular  case.  lii  one  case,  to 
prove  the  date  of  an  act  of   bankruptcy  committed   many  years 

1  1    Stark.  Evitl.    154,    155;    Alison's  proveil  to  have  written  a  certain  article  in 

*  Practice,  pp.  540,  541 ;  Tait  on  Evid.  4i'62.  a  newspaper,  but  tlie  nianuscrij)!  was  lost, 

-  Ilex  V.  St.  Martin's,  Leicester,  2  Ad.  and  A  had  no  recollection  of  the  fact  of 

&  El.  210.     See  also  Ilaig  v.  Newton,  1  writing;  it,  it  was  held  that  the  newspaper 

Const.  Uep.  428  ;   Sharpe  v.  Binfjley,  Id.  might  be  used  to  refresh  his  memory,  and 

373;  [Martin  v.  Good,  14  Md.  398;  Cole  that  he  might  tlicn  he  asked  wiietlier  he 

V.  Jessup,  I'l  Selden  (N.  Y.),  %.]  had  any  doubt  that  the  fact  was  as  therein 

'■'  Maugham  v.  Hubbard,  8  B.  &  C.  16,  stated.     Tophani  v.  McCiregor,  1   Car.  & 

per  Bailey,  J. ;  Russell  v.  Coffin,  8  Pick.  Kir.  320.     So,  where  the  transaction  liad 

143,  150  ;   Den  v.  Downam,  1  Green's  R.  faded  from   the  memory  of  the  witness, 

135,  142;  Jackson  v.  Christman,  4  Wend,  but  he  recollected,  that  while  it  was  recent 

277,  282;  Merrill  v.  Ithaca,  &c.,  Railroad  and  fresii  in  his  memory,  he  had  stated 

Co.  1(J  Wend.  598;  Patterson  v.  Tucker,  the  circumstances  in  his  examination  be- 

4  Ilalst.  322,  332,  333;  Wheeler  i'.  Hatch,  fore  commissioners  of  haiikruptcy,  wiiich 

3  Fairf.  38'J ;  Pigott  v.  IloUoway,  1  Binn.  they  had  reduced  to  writing,  and  he  had 

436;  Collins  o.  Lemasters,  2  Bail.  1 41.  signed;  he  was  allowed  to  look  at  liis  ex- 

*  Tanner  v.  Taylor,  cited  by  BuUer,  J.,  amination  to  refresh  his  memory.     Wood 

in  Doe  v.  Perkins, "3  T.  R.  754;   Howard  v.  Cooper,  Id.  645. 

?'.  Canfield,  5  Dowl.  P.  C.  417  ;  Dupuy  v.  »  Jones  v.  Stroud,  2  C.  &  P.  196. 
Truman,  2  Y.  &  Col.  341.     Where  A  was 


CHAP.  III.]  EXAMINATION   OF   WITNESSES.  481 

before,  a  witness  was  permitted  to  recur  to  his  own  deposition, 
made  some  time  during  the  year  in  which  the  fact  happened.^ 
In  another  case,  the  witness  was  not  permitted  to  refresh  his 
memory  with  a  copy  of  a  paper,  made  by  himself  six  months 
after  he  made  the  original,  though  the  original  was  proved  to 
have  been  so  written  over  with  figures  as  to  have  become  unin- 
telligible ;  the  learned  judge  saying,  that  he  could  only  look  at 
the  original  memorandum,  made  near  the  time.^  And  in  a  still 
later  case,  where  it  was  proposed  to  refer  to  a  paper,  which  the 
witness  had  drawn  up  for  the  party  who  called  him,  after  the 
cause  was  set  down  for  trial,  the  learned  judge  refused  it ; 
observing  that  the  rule  must  be  confined  to  papers  written  con- 
temporaneously with  the  transaction.^  But  where  the  witness  had 
herself  noted  down  the  transactions  from  time  to  time  as  they 
occurred,  but  had  requested  the  plaintiff's  solicitor  to  digest  her 
notes  into  the  form  of  a  de})Osition,  which  she  afterwards  had 
revised,  corrected,  and  transcribed,  the  Lord  Chancellor  indig- 
nantly suppressed  the  deposition.* 

§  439.  If  a  witness  has  become  Mind,  a  contemporaneous  writing 
made  by  himself  though  otherwise  inadmissible,  may  yet  be  read 
over  to  him,  in  order  to  excite  his  recollection.^  So,  where  a 
receipt  for  goods  was  inadmissible  for  want  of  a  stamp,  it  was 
permitted  to  be  used  to  refresh  the  memory  of  a  witness  who  heard 
it  read  over  to  the  defendant,  the  latter  at  the  same  time  admitting 
the  receipt  of  the  goods. ^ 

1  Vaughan  v.  IMartin,  1  Esp.  440.  ^  Jacob  r.  Lindsay,  1  East,  460.     In 

2  Jones  V.  Stroutl,  2  C.  &  P.  11)6,  per  Scotland,  the  subject  of  tlie  use  and  proper 
Best,  C.  J.  In  this  case,  the  words  in  tlie  office  of  writings,  in  restoring  tlie  recollec- 
copy  and  as  sworn  to  by  tlie  witness,  were  tion  of  witnesses,  has  been  well  considered 
spoken  to  the  i>lainti(r;  but  on  producing  and  settled ;  and  the  law  as  practised  in 
the  original,  winch,  on  further  reflection,  the  courts  of  that  country,  is  stated  witli 
was  contirnied  by  the  witness,  it  appeared  iirecisiun  by  I\[r.  xVlison,  in  his  elegant  and 
that  they  were  spoken  of  him.  Tlie  ac-  philosophical  Treatise  on  the  Practice  of 
tion  was  slander  ;  and  the  words  being  laid  the  Criminal  Law.  "It  is  frequently  made 
according  to  the  copy,  for  this  variance  a  question,"  he  observes,  "  whether  a  wit- 
the  plaintiff  was  nonsuited.  ness  may  refer  to  notes  or  nienioiandunis 

•'  Steinkeller  v.  Newton,  9  C.  &  P.  313.  made  to  assist  his  memory.     On  this  sub- 

[So  where  a  witness,  live  months  after  the  ject,  the  ride  is,  that  notes  or  memoranda 

occurrence  of  certain  events,  had,  at  the  made  up  by  the  witness  at  the  moment,  or 

request  of  a  party  interested,  made  a  state-  recently  after  the  fact,  maybe  looked  to 

nient  in  writing,  and  swore  to  it,  he  was  in  order  to  refresh  his  memory ;  but  if 

not  allowed  to  testify  to  his  behef  in  its  they  were  made   up  at  the   distance  of 

correctness.     Spring  Garden   Ins.  Co.  v.  weeks    or    months    thereafter,    and    still 

liiley,  15  ^Id.  ")4.1  ^^  more,  if  done  at  the  recommendation  of 

*  Anon,  cited  by  Lord  Kenyon,  in  Doe  one  of  the  jiarties,  they  are  not  admissible. 

V.  Perkins,  3  T.  K.  752.     See  also  Sayer  It  is  accoriiingly  usual  to  allow  witnesses 

V.  Wagstaff,  5  Beav.  462.  to   look   to   memorandums    made   at   the 

^  Catt  r.  Howard,  3  Stark.  R.  3.  time,  of  dates,  tlistances,  apieaiances  ou 

41 


482 


LAW  OF   EVIDENCE. 


[part  III. 


§  440.  Ill  general,  though  a  witness  must  depose  to  such  facts 
only  as  arc  zcithin  his  oivri  hioivledge^  yet  there  is  no  rule  that 
requires  him  to  speak  with  such  expression  of  certainty  as  to  ex- 
clude all  doubt  in  his  mind.  If  the  fact  is  impressed  on  his 
memory,  but  his  recollection  docs  not  rise  to  positive  assurance,  it 
is  still  admissible,  to  be  weighed  by  the  jury  ;  but  if  the  impression 
is  not  derived  from  recollection  of  the  fact,  and  is  so  slight  as  to 
render  it  probable  that  it  may  have  been  derived  from  others,  or 
may  have  been  some  unwarrantable  deduction  of  the  witness's  own 
mind,  it  will  be  rejected.^  And  though  the  opinions  of  witnesses 
are  in  general  not  evidence,  yet  on  certain  subjects  some  classes 
of  witnesses  may  deliver  their  own  opinions,  and  on  certain  other 
subjects  any  competent  witness  may  express  his  opinion  or  belief ; 
and  on  any  subject,  to  which  a  witness  may  testify,  if  he  has  any 
recollection  at  all  of  the  fact,  he  may  express  it  as  it  lies  in  his 


dear!  bodies,  lists  of  stolen  goods  or  the 
like,  before  eiiiittiiii;^  his  testimony,  or 
even  to  read  such  notes  to  the  jury,  as  his 
evidence,  he  having  first  sworn  that  they 
were  made  at  tlie  time,  and  faithfully 
done.  In  regard  to  lists  of  stolen  goods, 
in  particular,  it  is  now  the  usual  practice 
to  have  inventories  of  tiieni  made  up  at 
the  time  from  tiie  information  of  the  wit- 
iiess  in  prec(jgnition,  signed  by  him,  and 
libelled  on  as  a  production  at  the  trial,  and 
he  is  then  desired  to  read  them,  or  they 
are  read  to  him,  and  he  swears  that  they 
contain  a  correct  list  of  the  stolen  articles. 
In  this  way  much  time  is  saved,  at  the 
trial,  and  mucli  more  correctness  and  ac- 
curacy is  obtained,  than  could  possibly 
have  been  expected,  if  the  witness  were 
required  to  state  from  memory  all  the  par- 
ticulars of  the  stolen  articles,  at  the  dis- 
tance perhaps  of  months  from  the  time 
when  they  were  lost.  With  the  excep- 
tion, however,  of  such  memorandums, 
notes,  or  inventories  made  up  at  the  time, 
or  shortly  after  the  occasion  libelled,  a 
witness  is  not  permitted  to  refer  to  a  writ- 
ten pai)er  as  containing  his  dejiosition  ;  for 
that  would  annihilate  tlie  whole  advan- 
tages of  parol  evidence,  and  v'um  von;  ex- 
amination, and  convert  a  juiy  trial  into  a 
mere  onsideration  of  written  instruments. 
There  is  one  exception,  however,  properly 
introduced  into  this  rule;  in  the  case  of 
meilical  or  other  scientific  reports  or  cer- 
tificates, which  are  ludged  in  process  be- 
fore the  trial,  and  HIk'UciI  on  as  productions 
in  the  indictment,  and  which  the  witness 
is  allowed  to  read  as  his  deposition  to  the 
jury,  confirming  it  at  its  close  by  a  dec- 


laration on  his  oath,  that  it  is  a  true  report. 
The  reason  of  this  exce])tion  is  founded  in 
the  consideration,  that  the  medical  or  other 
scientific  facts  or  appearances,  which  are 
the  subject  of  such  a  report,  are  generally 
so  minute  and  detailed,  that  they  cannot 
with  safety  be  intrusted  to  tlie  memory  of 
the  witness,  but  much  more  reliance  may 
be  placed  on  a  report  made  out  by  him  at 
the  time,  when  the  tacts  or  appearances 
are  fresh  in  his  recollection ;  while,  on  the 
other  hand,  such  witnesses  have  generally 
no  personal  interest  in  the  matter,  and 
from  their  situation  and  rank  in  life,  are 
much  less  liable  to  suspicion  than  those  of 
an  inferior  class,  or  more  intimately  con- 
nected with  the  transaction  in  question. 
Although,  therefore,  the  scientific  witness 
is  always  called  on  to  read  his  rejiort,  as 
attiirding  the  best  evidence  of  the  appear- 
ances he  was  called  on  to  examine,  yet  he 
may  be,  and  generally  is,  subjected  to  a 
furtiier  examiualiou  by  tlie  jirosecutor,  or 
a  cross-examination  on  the  ])risoner's  part ; 
and  if  he  is  called  on  to  state  any  tiicts  in 
the  case,  unconnected  with  his  scientific 
report,  as  conversations  witli  the  deceased, 
confessions  heard  by  him  from  the  jianel, 
or  the  like,  utitur  jure  cDiniiiiiiie,  he  stands 
in  the  situation  of  an  ordinary  witness, 
and  must  give  his  evidence  verbally  in 
answer  to  the  questions  put  to  him,  and 
can  only  refer  to  jottings  or  memorandums 
of  dates,  &.C.,  made  up  at  the  time,  to  re- 
fresh his  memory,  like  any  other  person 
l)ut  into  the  box."  See  Alison's  Practice, 
640-542. 

1  Clark  V.  Bigelow,  4  Shepl.  246 ;  [Nute 
V.  Nute,  41  N.  H.  GO.] 


CHAP.  III.] 


EXAMINATION    OF    WITNESSES. 


483 


memory,  of  which  the  jury  will  jiulge.^  Thus  it  is  the  constant 
practice  to  receive  in  evidence  any  witness's  belief  of  the  identity 
of  a  person,  or  that  the  handwriting  in  question  is  or  is  not  the 
handwriting  of  a  particular  individual,  provided  he  has  any  knowl- 
edge of  the  person  or  handwriting ;  and  if  he  testifies  falsely  as 
to  his  belief,  he  may  be  convicted  of  perjury.^  On  questions  of 
science,  skill,  or  trade,  or  others  of  the  like  kind,  persons  of  skill, 
sometimes  called  experts,^  may  not  only  testify  to  facts,  but  are 
permitted  to  give  their  opinions  in  evidence.  Thus,  the  opinions 
of  medical  men  are  constantly  admitted,  as  to  the  cause  of  disease, 
or  of  death,  or  the  consequences  of  wounds,  and  as  to  the  sane  or 
insane  state  of  a  person's  mind,  as  collected  from  a  number  of 
circumstances,  and  as  to  other  subjects  of  professional  skill.*  And 
such  opinions  are  admissible  in  evidence,  though  the  w^itness 
founds  them,  not  on  his  own  personal  observation,  but  on  the  case 
itself,  as  proved  by  other  witnesses  on  the  trial.-^     But  where  sci- 


t 


1  Miller's  case,  3  Wils.  427,  perLd.  Ch. 
Just.  DeGrey ;  McXally's  Evid.  262,  263. 
And  see  Carraalt  v.  Post,  8  Watts,  411, 
per  Gibson,  C.  J. 

2  Rex  V.  Pedley,  Leach,  Cr.  Cas.  365, 
case  152. 

'^  Experts,  in  tlie  strict  sense  of  the 
word,  are  "persons  instructed  by  expe- 
rience." 1  Bouvier^s  Law  Diet,  in  verb. 
But  more  generally  spealdng,  the  term 
includes  all  "  men  of  science,"  as  it  was 
used  by  Ld.  Mansfield  in  Folkes  v.  Chadd, 
3  Doug.  157;  or,  "persons  professionally 
acquainted  witli  the  science  or  practice  " 
in  question;  Strickland  on  Evicl.  p.  408; 
or  "  conversant  witli  the  subject-matter, 
on  questions  of  science,  skill,  trade,  and 
others  of  tlie  like  kind."  Best's  Princi- 
ples of  Evidence,  §  346.  The  rule  on  this 
subject  is  stated  by  Mr.  Smith  in  his  note 
to  Carter  v.  Boehm,  1  Smith's  Lead.  Cas. 
286.  "  On  the  one  hand,"  he  observes, 
"  it  appears  to  be  admitted  that  the  opinion 
of  witnesses  possessing  peculiar  skill  is  ad- 
missible, whenever  the  subject-matter  of 
inquiry  is  such,  that  inexperienced  persons 
are  unlikely  to  prove  capable  of  forming  a 
correct  judgment  upon  it  without  such 
assisfcmce ;  in  other  words,  when  it  so  tar 
partakes  of  the  nature  of  a  science,  as  to 
require  a  course  of  previous  habit,  or 
study,  in  order  to  the  attainment  of  a 
knowledge  of  it;  see.  Folkes  v.  Chadd,  3 
Doug.  1-57 ;  R.  v.  Searle,  2  M.  &  M.  75 ; 
Thornton  i'.  R.  E.  Assur.  Co.,  Peake,  25; 
Chaurand  v.  Angerstein,  Peake,  44  ;  while 
on  the  other  hand,  it  does  not  seem  to  be 
contended  that  the  opinions  of  witnesses 


can  be  received,  when  the  inquiry  is  into] 
a  subject-matter,  the  nature  of  which  is 
not  such  as  to  require  any  jieculiar  habits 
or  stud}^  in  order  to  quality  a  man  to  un- 
derstand it."  It  has  been  held  unneces- 
sary that  the  witness  should  be  engaged 
in  the  practice  of  his  profession  or  science ; 
it  being  sufRcient  that  he  has  studied  it. 
Thus,  the  fact  tliat  the  witness,  though  he 
had  studied  medicine,  was  not  then  a  prac- 
tising physician,  was  held  to  go  merely  to 
his  credit.  TuUis  v.  Kidd,  12  Ala.  648. 
[The  rule  determining  the  subjects  upon 
which  experts  may  testify,  and  the  rule 
prescribing  the  qualitications  of  exjjerts, 
are  matters  of  law  ;  but  whetlier  a  witness 
offered  as  an  expert,  has  those  qualitica- 
tions, is  a  question  of  fact  to  be  decided 
bv  the  court  at  the  trial.  Jones  v.  Tucker, 
41  N.  Hamp.  546.] 

*  Stark.  Evid.  154;  Pliil.  &  Am.  on 
Evid.  89'.l ;  Tait  on  Evid.  433 ;  Hathorn  v. 
King,  8  JNIass.  371  ;  Ilosre  r.  Eisher,  1  Pet. 
C.  C.  R.  163 ;  Folkes  i:  Chadd,  3  Doug. 
157,  per  Ld.  IMansfield ;  McNally's  Evid. 
329-335,  ch.  30.  [A  non-professional  wit- 
ness may  give  his  opinion  upon  the  sanity 
of  a  party,  as  the  result  of  his  own  obser- 
vations, accompanied  with  a  statement  of 
the  facts,  which  he  has  observed,  but  he 
cannot  give  an  opinion  upon  the  facts 
stated  by  other  witnesses.  Dunham's  Ap- 
peal, 27  Conn.  193.] 

6  Rex  r.  Wright,  Russ.  &  Ry.  156; 
Rex  r.  Searle,  1  M.  &  Rob.  75  ;  McNaugh- 
ten's  case,  10  CI.  &  Fin.  200,  212;  Paige 
V.  Hazard,  5  Hill,  603.  [But  an  expert 
cannot  be  allowed  to  give  his  opinion  upou 


484  LAW   OF   EVIDENCE.  [PART   III. 

entific  men  are  called  as  witnesses,  they  cannot  give  their  opinions 
as  to  the  general  merits  of  the  cause,  but  only  their  opinions  upon 
the  facts  proved.^  And  if  the  facts  are  doubtful,  and  remain  to  be 
found  by  the  jnry,  it  has  been  held  improper  to  ask  an  expert  who 
has  heard  the  evidence,  what  is  his  opinion  upon  the  case  on  trial ; 
though  he  may  be  asked  his  opinion  upon  a  similar  case,  hypo- 
thetically  stated.^  Nor  is  the  opinion  of  a  medical  man  admissible, 
tliat  a  particular  act,  for  which  a  prisoner  is  tried,  was  an  act  of 
insanity.^  So,  the  subscribing  witnesses  to  a  will  may  testify  their 
opinions,  in  respect  to  the  sanity  of  the  testator  at  the  time  of 
executing  the  will ;  though  other  witnesses  can  speak  only  as  to 
facts ;  for  the  law  has  placed  the  subscribing  witnesses  about  the 
testator,  to  ascertain  and  judge  of  his  capacity.^  Seal  engravers 
may  be  called  to  give  their  opinion  upon  an  impression  whether  it 
was  made  from  an  original  seal,  or  from  an  impression.^  So,  the 
opinion  of  an  artist  in  painting  is  evidence  of  the  genuineness  of 
a  picture.^  And  it  seems,  that  the  genuineness  of  a  i5ostmark 
may  be  proved  by  the  opinion  of  one  who  has  been  in  the  habit 
of  receiving  letters  with  that  mark."  In  an  action  for  breach  of 
a  promise  to  marry,  a  person  accustomed  to  observe  the  mutual 
deportment  of  the  parties  may  give  in  evidence  his  opinion  upon 
the  question,  whether  they  were  attached  to  each  other.^  A  shi])- 
builder  may  give  his  opinion  as  to  the  seaworthiness  of  a  ship,  even 
on  fixcts  stated  l:)y  others.^      A   nautical   person   may  testify  his 

a  case  based  upon  statements  made  to  him  tion,  conduct,  and  manners  of  the  person 

by  parties  out  of  court  and  not  under  oatli.  whose  sanity  is  in  question,  it  lias  been 

Hculd  i;.  Thing,  45  Maine,  ?)'.>2. 1  held,  upon  grave  consideration,  that  the 

'■  Jameson  i\  Drinkald,  1-!  Moore,  148.  witness  may  depose,  not  only  to  particular 

Jiut  professional  books,  or   books  of  sci-  facts,  but  to  his  opinion  or  belief  as  to  the 

ence  (e.  g.  medical  books),  are  not  admis-  sanity  of  the  party,  formed  from  such  actu-i 

sible   in    evidence  ;    though    professional  al  observation.     Clary  v.  Clary,  '2  Ired.  R. 

witnesses  may  be  asked  the  grounds  of  78.     Such  evidence   is   also   admitted  in 

their  judgment  and  opinion,  wliieh  might  the  Ecclesiastical  courts.    See  Wlieeler  v. 

in  some  degree  be  founded  on  these  boDks  ^Vlderson,  o  Ilagg.  Eccl.  II.  574,  GU4,  005. 
as  a  part  of  tlieir  general  knowledge.    Col-  ^  Per    Ld.    Mansfield,    in    Folkes     v. 

Ijer  V.  Simpson,  5  C.  &  P.  73 ;  [Common-  Ciiadd,  -i  IJoug.  157. 
wealth  V.  Wilson,  1  Gray,  338. J     But  see  "^  Ibid. 

Uowman  v.  Woods,  1  Iowa,  11.  441.  ^  Abbey  v.  Lill,  5  Bing.  299,  per  Gase- 

^  Sills  V.  Brown,  9  C.  &  P.  GOl.  lee,  J.     [The  testinujny  of  experts  is  re- 

*  Kex  V.  Wright,  liuss.  &  R.  456.  ceivable,  in  corroboration  of  i)ositive  evi- 

*  Cliase  V.  Lincoln,^  Mass.  237;  Poole  dence  to  jirove  that,  in  their  opinion,  the 
V.  Richardson,  Id.  330;  Rambler  v.  Tryon,  whole  of  an  instrument  was  written  by  the 
7  S.  &  R.  90,  92 ;  Buckniinster  v.  Perry,  4  same  hand,  with  the  same  pen  and  ink, 
Mass.  593 ;  Grant  v.  Thompson,  4  Conn,  and  at  the  same  tkne.  Fulton  v.  Hood, 
203.    And  see  Sheafe  v.  Rowe,  2  Lee,  R.  34  Penn.  365.) 

415;  Kinleside  r.  Harrison,  2  Phil.  523;  "  IMcKee  v.  Nelson,  4  Cowen,  355. 

Wogan  V.   Small,   11   S.  &  R.   141.     But  ^  Thornton  r.  The  Royal  Exch.  Assur. 

where  the  witness  has  had  opportunities  Co.  1  Peake,  R.  25;  Chauraud  i-.  ^Vnger- 

for  knowing  and  observing  the  conversa-  stein,  Id.  43;  Beckwith  v.  Sidebotham,  1 


CHAP.  III.]  EXAMINATION   OF  WITNESSES.  485 

opinion  wliether,  npon  the  facts  i)roved  by  the  plaintiff,  the  collision 
of  two  ships  could  have  been  avoided  by  proper  care  on  the  part  of 
the  defendant's  servants.^  Where  the  question  was,  whether  a 
bank  which  had  been  erected  to  prevent  the  overflowing  of  the  sea, 
had  caused  the  choking  up  of  a  harbor,  the  opinions  of  scientific 
engineers,  as  to  the  effect  of  such  an  embankment  upon  the  harbor, 
were  held  admissible  in  evidence.^  A  secretary  of  a  fire  insurance 
company,  accustomed  to  examine  buildings  with  reference  to  the 
insurance  of  them,  and  who,  as  a  county  commissioner,  had  fre- 
quently estimated  damages  occasioned  by  the  laying-out  of  railroads 
and  highways,  has  been  held  competent  to  testify  his  opinion,  as 
to  the  effect  of  laying  a  railroad  within  a  certain  distance  of  a 
building,  upon  the  value  of  the  rent,  and  the  increase  of  the  rate 
of  insurance  against  fire.^  Persons  accustomed  to  observe  the 
habits  of  certain  fish  have  been  permitted  to  give  in  evidence  their 
opinions,  as  to  the  ability  of  the  fish  to  overcome  certain  obstruc- 
tions in  the  rivers  which  tlicy  were  accustomed  to  ascend.^  A  per- 
son acquainted  for  many  years  with  a  certain  stream,  its  rapidity 
of  rise  in  times  of  freshet,  and  the  volume  and  force  of  its  waters 
in  a  certain  place,  may  give  his  opinion  as  to  the  sufficiency  of  a 
dam  erected  in  that  place,  to  resist  the  force  of  the  flood.^  A  prac- 
tical surveyor  may  express  his  opinion,  whether  the  marks  on 
trees,  piles  of  stone,  &c.,  were  intended  as  monuments  of  bounda- 
ries ;  ^  but  he  cannot  be  asked  whether,  in  his  opinion,  from  the 
objects  and  appearances  whicli  he  saw  on  the  ground,  the  tract  he 
surveyed  was  identical  with  the  tract  marked  on  a  certain  dia- 
gram.'^ 

Campb.  117.     So  of  nautical  men,  as  to  Railw.  Co.  4  My.  &  C.  116,  120;  1  Kailw. 

navigating  a  ship.     Malton  v.  Nesbit,  1  C.  Cas.  576. 

&  P.  70.     Upon  the  question,  whether  cer-  *  Cottrill  v.  Myrick,  3  Fairf.  222. 

tain  implements  were  part  of  the  7iecessary  ^  Porter  v.   Poquonnoc   Man.    Co.    17 

tools  of  a  person's  traile,  the  opinions  of  wit-  Conn.  24'.). 

nesses  are  not  admissible ;  but  tlie  jury  are  "^  Davis  v.  Mason,  4  Pick.  156. 

to  determine  upon  the  facts  proved.    Whit-  ">  Farar  v.  WarHeld,  8  Mart.  n.  s.  695, 

marsh  v.  Angle,  3  Am.  Law  Journ.  274,  696.     So,  the  opinion  of  an  experienced 

K.  s.  seaman  has  been  received,  as  to  the  proper 

1  Fenwick  v.  Bell,  1  Car.  &  Kir.  312.  stowage  of  a  cargo;  —  Price  n.  Powell,  3 

2  Folkes  ('.  Chadd,  3  Doug.  157.  Const.  322;  —  and  of  a  mason,  as  to  the 

3  Webber  v.  Eastern  Railroad  Co.  2  time  requisite  for  the  walls  of  a  house  to 
Met.  147.  Where  a  point  involving  ques-  become  so  dry  as  to  be  sate  for  human 
tions  of  practical  science  is  in  dispute  in  habitation;  Smith  v.  Gugerty,  4  Barb.  s.  c. 
chancery,  the  court  will  advise  a  reference  R.  614  ;  and  of  a  master,  engineer,  and 
of  it  to  an  expert  in  tliat  science,  for  his  builder  of  steamboats,  as  to  the  manner  of 
opinicm  upon  the  facts ;  which  will  be  a  collision,  in  view  of  the  facts  proved, 
adopted  by  the  court  as  the  ground  of  its  The  Clipper  v.  Logan,  IS  Ohio,  375.  [A 
order.     Webb    v.    Mimcliester    &    Leeds  witness,  even  if  an  expert  as  to  hand- 

41* 


486  LAW   OF   EVIDENCE.  [PART   III. 

[*§440a.  Some  nice,  and  often  difficult,  questions  will  arise,  in 
regard  to  the  particular  matters  and  points  with  reference  to  which 
witnesses  may  be  allowed  to  give  testimony  by  way  of  opinion. 
"We  have  attempted  to  illustrate  the  question  in  various  modes,  on 
former  occasions.^  But  it  is  not  practicable  to  make  the  rule  more 
j)recisc  than  a  mere  approximation  towards  definiteness.  Facts 
which  are  latent  in  themselves,  and  only  discoverable  by  way  of 
appearances  more  or  less  symptomatic  of  the  existence  of  the  main 
fact,  may,  from  their  very  nature,  be  shown  by  the  opinion  of  wit- 
nesses as  to  the  existence  of  such  appearances  or  symptoms :  such 
are  the  state  of  health  or  of  the  affections,  as  already  stated.  Sanity 
is  a  question  of  the  same  character.  So  too,  upon  inquiries  as  to  the 
state  or  amount  of  one's  property,  when  the  facts  are  too  numer- 
ous and  evanescent  to  be  given  in  detail,  those  acquainted  with  the 
fiicts  are  allowed  to  express  an  opinion  which  is  the  mere  grouping 
of  the  facts.  So  too,  as  to  the  marketable  condition  and  value  of 
property,  and  many  other  questions  where  it  is  not  practicable  to 
give  more  definite  knowledge,  opinions  are  received.  In  some  cases, 
these  opinions  must  come  from  experts,  who  have  acquired  special 
skill  in  detecting  the  connection  between  certain  external  symp- 
toms and  their  latent  causes ;  and  .in  other  cases,  all  persons  are 
supposed  to  have  such  knowledge  and  experience  as  to  entitle  their 
opinions  to  be  weighed  by  the  jury.  The  testimony  of  experts  is 
necessary  upon  all  such  questions  as  require  special  study  and  ex- 
perience in  order  to  form  reliable  judgments.  The  distinction  is 
fairly  enough  illustrated  by  the  question  of  sickness  or  health. 
^All  witnesses  are  competent  to  form  a  reliable  opinion  whether 
one  whom  they  have  opportunity  to  observe  appears  to  Ijc  sick  or 
well  at  the  time  ;  or  whether  one  is  seriously  disabled  by  a  wound 
or  a  blow.  \  But  if  the  inquiry  were  more  definite,  as   to   the 


writing,  cannot  give  hia  opinion  as  to  tlie  N.  Ilamp.  109 ;  Rochester  v.  Chester,  3  N. 

indorsement  on  a  note  liaving  been  maile  Ilanip.   349 ;   Peterborougli   v.  Jaffrcy,   6 

as  long  previous  as  six  3'ears.     Sackctt  i\  N.  llanip.  402.     And  see  Wliip])le  r.  Wal- 

8j)encer,  2\}  I>ar!).  ISO.  |     But  mere  opin-  pole,  10  N.  llamp.  130,  where  this  rule  is 

Jons  as  to  the  amount  of  damaces  are  not  expounded.     [But  see  Vandine  v.  Burpee, 

onlinarjlyty  be  received.     IT:irger  >;.  Ed-  18    Met.    '288;    Shaw   v.    Cliarlestown,  2 

monds,  4   Barb.  s.   c.    li.    256;    Giles  v.  Gray,   107.     The  value  of  the  reversion 

O'Toole,  Id.  201.    See  also  Walker  v.  Pro-  of  land  over  which  a  railroad  is  located  is 

tection  Ins.  Co.  l'>  Shejjl.  317.     Nor  are  not  projierly  provable  by  experts.    Boston 

mure   opinions  admissible   respecting  the  &  Worcester  R.  Co.  v.  Old  Colony  R.  Co. 

value  of  projierty  in  common  use,  such  as  3   Allen,   142;  Mish  p.  Wood,  34  Penn. 

liorses  and  wagons,  or  lands,  concerning  451.] 

which  no  particular  study  is  required,  or  ^  Railways,  133,  134,  and  notes;  Wilis, 

skill  possessed.     Robertson  v.  Stark,  15  Part  1,  §§  37-39. 


CHAP.  III.]  EXAMINATION   OF   WITNESSES.  487     VX 

particular  state  of  disease  under  winch  one  is  laboring,  and  its/ 
curabk  or  fatal  character ;  or  as  to  the  dangerous  or  falal  char- 
acter of  a  wound  or  blow ;  or  in  what  particular  mode,  or  with  what 
species  of  weapon  or  instrument,  such  blow  or  wound  was  inflicted, 
special  study,  observation,  and  experience  might  be  requisite  in 
order  to  express  an  opinion  entitled  to  the  dignity  of  being  re- 
garded as  evidence. 

In  a  recent  case  ^  it  was  said,  in  order  to  entitle  one  to  testify  as 
an  expert,  it  must  first  be  shown  that  he  has  acquired  actual  skill 
and  scientific  knowledge  upon  the  subject ;  and  that  mere  oppor- 
t^iity  for  observation  is  not  sufficient.  The  term  "  expert " 
seems  to  imply  both  superior  knowledge  and  practical  experience 
in  the  art  or  profession ;  but,  generally,  nothing  more  is  required 
to  entitle  one  to  give  testimony  as  an  expert  than  that  he  has 
been  educated  in  the  particular  art  or  profession.  The  cases 
are  very  numerous  where  the  opinions  of  unprofessional  wit- 
nesses are  received,  as  for  instance,  as  to  the  value  of  property ,2 
as  to  one's  pecuniary  responsibility ;  ^  and  an  expert  may  state 
general  facts,  which  are  the  results  of  scientific  knowledge  or 
professional  skill.'^  The  testimony  of  experts  is  not  admissible 
upon  matters  of  judgment  within  the  knowledge  and  experi- 
ence of  ordinary  jurymen;  as,  for  instance,  to  what  degree  of 
heat  it  is  prudent  to  expose  wet  hemlock  staves.^  So,  whether 
one  appeared  to  be  intoxicated,  may  be  shown  by  the  opinion  of 
ordinary  witnesses.^ 

Matters  of  general  history  may  be  assumed  as  within  the 
knowledge  of  court  and  jury,  but  particular  facts  relevant  to  the 
cause  cannot  be  proved  by  reading  from  a  published  book,  nor 
can  medical  books  or  those  upon  farming  be  cited  by  counsel ;  but 
medical  witnesses  may  be  asked  or  cross-examined  whether  they 
have  read  a  particular  book ;  and  books  of  standard  authority  in 
literature  may  be  referred  to  by  counsel,  in  order   to   show  the 

1  r*  Pao-e  V.  Tarker,  40  N.  H.  R.  47 ;  ^  White  v.  Ballou,  8  Allen,  408 ;  New 
Pelamoiirges  v.  Clarke,  9  Iowa,  1.  Englaiul  Glass  Co.  v.  Lovell,  7  Cush.  321. 

2  Nellis  v.McCarn,35Barb.  115;  Derby  But  the  price  to  be  paid  for  the  use  of  a 
r.  Gallup,  5  Mill.  119;  McDonald  r.  Chris-  horse  and  wagon  may  be  shown  by  the 
tie  42  Barb.  3(5.  But  in  New  Hampshire  opinion  of  those  who  have  had  experience 
the  rule  is  otherwise.  Low  v.  C.  &  P.  R.  in  such  matters.  Brady  v.  Brady,  8  Allen, 
Railway  Co.  101. 

3  Bank  of  Middlebury  v.  Rutland,  83  "^  People  v.  Eastwood,  14  N.  Y.  Gt. 
Vt.  R.  414.  App.  5G2.J 

*  Chapman,  J.,  in  Emerson  v.  Lowell 
Gas  Light  Co.  6  iUlen,  148. 


488  LAW   OF   EVIDENCE.  [PART  III. 

general  course  of  construction,  and  explain  the  sense  in  wliicb 
words  are  used.^] 

§  4405.  In  weighing  the  testimony  of  hlased  witnesses,  however, 
a  distinction  is  observed  between  matters  of  opinion  and  matters  of 
fact.  Such  a  witness,  it  is  said,  is  to  be  distrusted  when  he  speaks 
to  matters  of  opinion;  but  in  matters  o^  fact,  his  testimony  is  to 
receive  a  degree  of  credit  in  proportion  to  the  probability  of  the 
transaction,  the  absence  or  extent  of  contradictory  proof,  and  the 
general  tone  of  his  evidence.^ 

§  441.  But  witnesses  are  not  receivdhle  to  state  their  views  on 
matters  of  legal  or  moral  obligation,  nor  on  the  manner  in  whi(j}i 
other  persons  would  probaljly  be  influenced,  if  the  parties  acted  in 
one  way  rather  than  in  another.^  Therefore  the  opinions  of  medi- 
cal practitioners  upon  the  question,  whether  a  certain  physician 
had  honoral)ly  and  faithfully  discharged  his  duty  to  his  medical 
brethren,  have  been  rejected.*  So  the  opinion  of  a  person  con- 
versant with  the  business  of  insurance,  upon  the  question,  whether 
certain  parts  of  a  letter,  which  the  broker  of  the  insured  had  re- 
ceived, but  which  ho  suppressed  when  reading  the  letter  to  the 
underwriters,  were  or  were  not  material  to  be  communicated,  has 
been  held  inadmissible  ;  ^  for,  whether  a  particular  fact  was  mate- 
rial or  not  in  the  particular  case  is  a  question  for  the  jury  to 
decide,  under  the  circumstances.^  Neither  can  a  witness  be  asked, 
what  would  have  been  his  own  conduct  in  the  particular  case." 
But  in  an  action  against  a  broker  for  negligence,  in  not  procuring 
the  needful  alterations  in  a  policy  of  insurance,  it  has  been  held, 
that  other  brokers  might  be  called  to  say,  looking  at  the  policy, 

1  Darby  v.  Ousley,  1  11.  &  N.  1,]  would  not  be  regarded  by  him  as  dishon- 

2  Lockwood  V.  Lockwood,  'J  Curt.  209;  orable.  Greville  v.  Chapman,  5  Ad.  &E1. 
Dillon  V.  Dillon,  3  Curt.  UD,  102.    [Where     731,  n.  s. 

a  party  to  a  suit  is  a  competent  witness  he  *  Ivamadge  v.  Ryan,  9  Bing.  333. 

may  give  liis  testimony  as  an  expert,  if  ^  Campbell   v.  Kickards,  5  B.  &  Ad. 

qualified.      Dickenson    v.    Fitchburg,    13  840,  in   which   the   case   of  llickards  y. 

Gray,  546.]  Murdock,   10  B.   &  C.   527,   and   certain 

^  Per  Ld.  Denman,  C.  J.,  in  Campbell  other  decisions  to  the  contrary,  are  con- 

V.  Rickards,  5  B.  &  Ad.  840;  2  N.  &  M.  sidered  and  overruled.     See,  accordingly, 

642,  s.  c.     iiut  wliere  a  libel  consisted  in  Carter    v.    Boehin,  3   Burr,    1905,    1918 ; 

imputing  to  the  i)laintiff  tliat  he  acted  dis-  Durrcl  v.  Bederley,    1  Holt's    Cas.   283; 

lionorably,  in  witiidrawing  a  horse  which  Jefferson  Ins.  Co.  v.  Cotheal,  7  Wend.  72, 

had  been  entered  for  a  race;  and  he  proved  79;    [Joyce  v.  Maine   Lisurance    Co.   45 

bv  a  witness  that  the  rules  of  the  jockey  Maine,  1IJ8.] 

club,  of  which  lie  was  a  member,  permit-  ''  Rawlins  v.  Desborough,  2  M.  &  Rob. 

ted  owners  to  witiidraw  their  horses  be-  329;  Westbury  v.  Aberdein,  2  M.  &  W. 

fore  the  race  was  run  ;  it  was  held  that  the  207. 

■witness,   on   cross-examination,  might  be  '  Berthon   v.   Loughman,  2  Stark.  R. 

asked  whether  such   conduct   as   he  had  258. 
described   as   lawful   under    those    rules, 


CHAP.  Ill,] 


EXAMINATION   OF   WITNESSES. 


489 


the  invoices,  and  the  letter  of  instructions,  what  alterations  a  skil- 
ful broker  ought  to  have  made.^ 

§  442.  When  a  party  offers  a  witness  in  proof  of  his  cause,  he 
thereby,  in  general,  represents  him  as  worthy  of  belief.  He  is 
presumed  to  know  the  character  of  the  witnesses  he  addiiccs ;  and 
having  thus  presented  them  to  the  court,  the  laio  ivill  not  jyermit  the 
parti/  afterwards  to  hnpeach  their  general  reputation  for  truth,  or  to 
inpugn  their  credibility  by  general  evidence,  tending  to  show  them 
to  be  unworthy  of  belief  For  this  would  enable  him  to  destroy 
the  witness  if  he  spoke  against  him,  and  to  make  him  a  good  wit- 
ness if  he  spoke  for  him,  with  the  means  in  his  hand  of  destroying 
his  credit  if  he  spoke  against  him.^ 

§  443.  But  to  this  general  rule  there  are  some  exceptions.    For,  U 
where  the  witness  is  not  one  of  the  party's  own  selection,  but  is  f 


1  Chapman  v.  Walton,  10  Bingr.  57. 
Upon  the  question,  whether  the  opinion 
of  a  person,  conversant  with  the  business 
of  insurance,  is  admissible,  to  show  that 
the  rate  of  the  premium  would  have  been 
affected  by  the  communication  of  partic- 
xilar  facts,  there  has  been  much  diversity 
of  opinion  among  judges,  and  the  cases 
are  not  easily  reconciled.  See  Phil.  & 
Am.  on  Evid.  899;  2  Stark.  Evid.  88G. 
But  the  later  decisions  are  against  the  ad- 
missibility of  the  testimony,  as  a  general 
rule.  See  Campbell  v.  Rickards,  5  B.  & 
Ad.  840.  Perhaps  the  following  observa- 
tions of  Mr.  Starkie,  on  this  subject,  will 
be  found  to  indicate  the  true  principle  of 
discrimination  among  the  cases  whicli  call 
for  the  application  of  the  rule.  "  When- 
ever the  fixing  tiie  lair  price  and  value 
upon  a  contract  to  insure  is  matter  of 
skill  and  judgment,  acting  according  to 
certain  general  rules  and  principles  of  cal- 
culation, applied  to  tlie  particular  circiun- 
stances  of  each  individual  case,  it  seems 
to  be  matter  of  evidence  to  show 
whether  the  tacts  suppressed  would  have 
been  noticed  as  a  terra  in  the  particular 
calculation.  It  would  not  be  difficult  to 
propound  instances,  in  which  tlie  materi- 
ality of  tiie  fact  withheld  would  be  a 
question  of  pure  science ;  in  other  in- 
stances, it  is  very  possible  that  mere 
(Jommon  sense,  independent  of  any  pecul- 
iar skill  or  exjierience,  would  be  sutHcient 
to  comprehend  that  the  disclosure  was 
material,  and  its  suppression  fraudulent, 
allhough  not  to  understand  to  what  ex- 
tent the  risk  was  increased  by  that  fact. 
In  intermediate  cases,  it  seems  to  be  dif- 
ficult in  principle  wholly  to  exclude  the 
evidence,   although  its   importance   may 


vary  exceedingly  according  to  circum- 
stances." See  2  Stark.  Evid.  887,  888 
(3d  Lond.  edit.),  049  (6th  Am.  edit.). 

■^  Bull.  N.  P.  297 ;  Ewer  v.  Ambrose, 
3  B.  &  C.  746;  Stockton  v.  Demuth,  7 
Watts,  39 ;  Smith  i'.  Price,  8  Watts,  447. 
But  where  a  witness  testified  to  the  jury, 
contrary  to  her  statement  in  a  former 
deposition  given  in  the  same  cause,  it  was 
held  not  improper  for  the  judije  to  order 
the  deposition  to  be  read,  in  order  to  im- 
jieach  the  credit  of  the  witness.  Eex  v. 
Oldroyd,  Rus.  &  Ry.  88. .  [A  witness  who 
has  testified  in  chief  that  he  does  not 
know  certain  facts  cannot,  although  he 
shows  a  disposition  to  conceal  what 
he  knows,  be  asked  by  the  party  calling 
him  whether  he  did  not  on  a  former  occa- 
sion swear  to  his  knowledge  of  those  facts, 
as  the  object  of  the  question  could  only 
be  "  to  disparage  the  witness  and  show 
him  unworthy  of  credit  with  the  jury, 
which  was  inadmissible."  Commonwealth 
v.  Welch,  4  Gray,  535,  537.]  [*  The  doc- 
trine of  the  case  just  cited  is  sustained  by 
the  general  course  of  decision  in  America 
upon  the  point,  as  we  have  already  seen, 
ante,  §  434  a ;  Sanchez  r.  The  I'eople,  22 
N.  Y.  App.  147.  It  is  very  certain  that 
no  such  course  of  examination  could  be 
allowed  for  the  mere  purpose  of  discredit- 
ing the  witness.  The  rule  extends  even 
to  the  case  of  one  party  making  his 
adversary  a  witness,  liolbrook  v.  ^lix,  1 
E.  1).  Smith,  154.  But  it  has  seemed  to 
us  that  tills  course  of  inquiry,  as  to  the 
witness  having  given  a  different  account 
of  the  matter  on  another  occasion,  is 
fairly  susceptible  of  being  viewed  as  an 
allowable  mode  of  cross-examination,  in 
order  to  induce  an  unwilUug  witness  to 


490  LAW   OF   E\nDENCE.  [PART   III. 

one  whom  tlie  law  obliges  him  to  call,  such  as  the  subscribing  wit- 
ness to  a  (iced,  or  a  will,  or  the  like :  here  he  can  hardly  be  con- 
sidered as  the  witness  of  the  party  calling  him,  and  therefore,  as  it 
seems,  his  character  for  truth  may  be  generally  impeached.^  But, 
however  this  may  be,  it  is  exceedingly  clear  that  the  party,  calling 
a  witness,  is  not  precluded  from  proving  the  truth  of  any  particular 
fact,  by  any  other  competent  testimony,  in  direct  contradiction  to 
what  such  witness  may  have  testified ;  and  this  not  only  where  it 
appears  that  the  witness  was  innocently  mistaken,  but  even  where 
the  evidence  may  collaterally  have  the  effect  of  showing  that  he 
was  generally  unworthy  of  belief.^ 

§  444.  "Whether  it  be  competent  for  a  party  to  prove  that  a  wit- 
ness whom  he  has  called,  and  whose  testimony  is  unfavorable  to 
his  cause,  had  j^reviously  stated  the  facts  in  a  different  manner,  is  a 
question  upon  which  there  exists  some  diversity  of  opinion.  On 
the  one  hand,  it  is  virged,  that  a  party  is  not  to  be  sacrificed  to  his 
witness  ;  that  he  is  not  represented  by  him,  nor  identified  with 
him,;  and  that  he  ought  not  to  be  entrapped  by  the  arts  of  a  de- 
signing man,  perhaps  in  the  interest  of  his  adversary .^  On  the 
other  hand,  it  is  said,  that  to  admit  such  proof  would  enable  the 
party  to  get  the  naked  declarations  of  a  witness  before  the  jury, 
operating,  in  fact,  as  independent  evidence;  and  this,  too,  even 
where  the  declarations  were  made  out  of  court,  by  collusion,  for 
the  purpose  of  being  thus  introduced.*  But  the  weight  of  authority 
seems  in  favor  of  admitting  the  party  to  show,  that  the  evidence 

refresh  his  memory,  and  state  the  matter  2  Stark.  E.  334 ;  Ewer  v.  Ambrose,  3  B. 

more  tiivorably  to  the  party.     And  if  we  &  C.   746 ;   6  D.   &  R.  127 ;   4  B.  &  C. 

allow  the  party  to  cross-examine  his  own  2-5,  s.  c. ;  Friedlander  v.  London  Assur. 

witness   because    he    seems    reluctant  or  Co.  4   B.  &  Ad.  193;  Lawrence  v.   Bai"- 

partial,    it   would    secni    proper    tliat  he  kcr,   5  Wend.    305,   per   Savage,    C.   J. ; 

should  have  the  ordinary  range  of  cross-  Cowden   v.   Keynolds,    12  S.  &  R.  281 ; 

examination,  so  far  as  it  has  any  tendency  Bradley  v.  Ricardo,  8  Bing.  57  ;  Jackson 

to  elicit  a  statement  of  the  facts  more  fa-  v.    Leek,    12    AVend.    105 ;    Stockton    v. 

vorable  to  the  party,  and  is  not  exclusive-  l')emuth,  7  Watts,  39 ;  Brown  v.  Bellows, 

ly  of  a  tendency  to  discredit  his  own  wit-  4   Pick.    179,    194 ;    Perry   v.  Massey,   1 

ness.     /-"asV,  §  444  a.]  Bail.  32;  Spencer  r.  White,  1  Iredell,  II. 

1  Lowe  V.  Jolliffe,  1  W.  Bl.  365;  Poth.  239;  Dennett  r.  Dow,  5  Sliepl.  19;  Mc- 

on  Obi.  by  Evans,  vol.   2,  p.  232,   App.  Arthur  r.  Ilurlburt,  21  Wend.  190 ;  Attor.- 

No.  16;  Williams  v.  Walker,  2  Rich.  Eq.  Gen.  v.  Hitchcock,  1  Exch.  R.  91,  11  Jur. 

R.  201.     Anil  see  Goodtitle  v.  Clayton,  4  378 ;  Tlie  Lochlibo,  14  Jur.  792,  1  Eng. 

Burr.  2224;    Cowden  v.  Reynolds,  12  S.  L.  &  Eq.  Rep.  645;    [Hall  r.   Houghton, 

&  R.   281.     But  sec   Whitaker  v.   Salis-  37  Maine,  411;  Seavy  r.  Dearborn,  19  N. 

bury,  15  Pick.  .544,  545;  Dennett  v.  Dow,  H.  351 ;  Brown  v.  Wood,  19  Miss.  475.] 

6  Shepl.  19;  Brown  v.  Bellows,  4  Pick.  ^  pi,ii.  &  Am.  on  Evid.  904,  905;  "2 

194  ;  [Shorey  v.  Hussey,  32  Maine,  679.]  Phil.  Evid.  447. 

'•^  Bull.  N.  P.  297;   Alexander  v.  Gib-  *  Ibid.;  Smith  r.  Price,  8  Watts,  447; 

son,  2  Campb.  555 ;  Richardson  v.  Allan,  Wriglit  >•.  Beckett,  1  M.  &  Rob.  414,  428, 

per  Bolland,  B. 


CHAP.  III.] 


EXAMINATION   OF   WITNESSES. 


491 


has  taken   him  by  surprise,  and   is   contrary  to  the   examination 
■  of  the  witness  preparatory  to  the  trial,  or  to  what  the  party  liad  rear  ) 
son  to  believe  he  would  testify ;  or,  that  the  witness  has  recently  ; 
been  brought  under  the  influence  of  the  other  party,  and  has  d<i-j 
ceived  the  party  calling  him.     For  it  is  said  that  this  course  isj 
necessary  for  his  protection  against  the  contrivance  of  an  artful'\ 
witness ;  and  that  the  danger  of  its  being  regarded  by  the  jury  as  • 
substantive  evidence  is  no  greater  in  such  cases,  than  it  is  where 
the  contradictory  declarations  are  proved  by  the  adverse  party.^ 

[*§  444a.  The  author  seems  in  the  preceding  section  to  have 
stated  the  doctrine  of  the  right  of  the  party  to  contradict  his  o^^^l 
witness  who  unexpectedly  testifies  against  him,  somewhat  more 
strongly  than  it  is  held  by  the  English  courts  ;  and  the  rule  of  the 
American  courts  is  even  more  restricted  than  that  of  the  English 
courts  in  that  respect.^  The  question  is  extensively  discussed  in 
the  case  of  Melhuish  v.  Collier  ^  both  by  counsel  and  by  the  difierent 
members  of  the  court,  and  the  conclusion  arrived  at  is,  that  you 
may  cross-examine  your  own  witness,  if  he  testify  contrary  to  what 
you  had  a  right  to  expect,  as  to  what  he  had  stated  in  regard  to  the 
matter  on  former  occasions,  either  in  court  or  otherwise,  and 
thus  refresh  the  memory  of  the  witness,  and  give  him  full  opportu- 
nity to  set  the  matter  right  if  he  will ;  and  at  all  events  to  set 
yourself  right  before  the  jury.      But  you  cannot  do  this  for  the 


1  Wright  V.  Beckett,  1  M.  &  Eob.  414, 
416,  per  Ld.  Denman ;  Rice  v.  New  Eng. 
Marine  Ins.  Co.  4  Pick.  439 ;  Rex  v.  Old- 
royd,  Russ.  &  Ry.  88,  90,  per  Ld.  Elleu- 
borougli,  and  Mansfield,  C.  J. ;  Brown  v. 
Bellows,  4  Pick.  179 ;  The  State  v.  Nor- 
ris,  1  Hayw.  437,  438  ;  2  Phil.  Evid.  450- 
4G3  ;  Dunn  v.  Aslett,  2  M.  &  Rob.  l-.i2 ; 
Bank  of  Northern  Liberties  i\  Uavis,  6 
Watts  &  Serg.  285 ;  infra,  §  467,  n.  But 
see  Holdsworth  v.  Mavor  of  Dartmouth, 
2  M.  &  Rob.  153  ;  Regina  v.  Ball,  8  C.  & 
P.  745;  and  Regina  v.  Farr,  8  C.  &  P. 
768,  where  evidence  of  t'liis  kind  was 
rejected.  In  a  recent  case,  however,  this 
point  has  been  more  fully  considered,  and 
it  was  held,  tliat  if  a  witness  unexpectedly 
gives  evidence  adverse  to  the  party  call- 
ing him,  tlie  jiarty  may  ask  him  if  he  has 
not,  on  a  particular  occasion,  made  a  con- 
trary statement.  And  the  question  and 
answer  may  go  to  the  jur3%  with  the  rest 
of  the  evidence,  the  judge  cautioning 
them  not  to  infer,  from  tlie  question 
alone,  that  the  fact  suggested  in  it  is  true. 
In  such  case,  the  party  who  called  the 


witness  may  still  go  on  to  prove  his  case 
by  other  witnesses,  notwithstanding  their 
testimony,  to  relative  facts,  may  contra- 
dict, and"  thus  indirectly  discredit,  the  for- 
mer witness.  Thus,  in  an  action  for  an 
assault  and  battery,  if  the  plaintiff's  first 
witness  testifies  that  tlie  plaintiff,  in  con- 
versation, ascribed  the  injury  to  an  acci- 
dent, the  plaintift'  may  prove  that,  in  fiict, 
no  such  accident  occurred.  And  if  the 
witness  denies  a  material  fact,  and  states 
that  persons  connected  with  the  plaintiff 
offered  him  money  to  assert  the  fact,  the 
plaintiff  may  not  only  still  go  on  to  prove 
the  fact,  but  he  may  also  disprove  the 
subornation ;  for  this  latter  fact  has  now 
become  relevant,  though  no  part  of  the 
main  transaction,  inasmuch  as  its  truth  or 
falsehood  may  fiiirly  influence  the  belief 
of  the  jurv  as  to  the  whole  case.  Mel- 
huish V.  Collier,  15  Ad.  &  El.  378,  n.  s. 
[See  The  Lochlibo,  1  Eng.  Law  &  Eq.  645. 
Greenough  v.  Eccles,  5  Com.  B.  Rep. 
N.  s.  786.] 

•■i  [*  Ante,  §  442,  and  Editor's  note. 

8  15  Q.  B.  878. 


492  LAW   OF   EVIDENCE.  [PART  III. 

'  mere  purpose  of  discrediting  tlic  witness ;  nor  can  you  be  allowed 
to  prove  the  contradictory  statements  of  the  witness  upon  other  ■ 
occasions ;  but  must  be  restricted  to  proving  the  facts  otherwise  by 
other  evidence.  And  the  same  rule  prevails  in  the  courts  of 
Admiralty .1  And  this  seems  to  us  to  be  placing  the  matter  upon 
its  true  basis,] 

§  445.  When  a  witness  has  been  examined  in  chief,  the  other 
party  has  a  right  to  cross-examine  him.^  But  a  question  often 
arises,  whether  the  witness  has  been  so  examined  in  chief,  as  to 
give  the  other  party  this  right.  If  the  witness  is  called  merely  for 
the  purpose  of  producing  a  paper,  which  is  to  be  proved  by  another 
witness,  he  need  not  be  sworn.^  Whether  the  right  of  cross-exam- 
ination, that  is,  of  treating  the  witness  as  the  witness  of  the  adverse 
party,  and  of  examining  him  by  leading  questions,  extends  to  the 
whole  case,  or  is  to  be  limited  to  the  matters  upon  which  he  has 
already  been  examined  in  chief,  is  a  point  upon  which  there  is 
some  diversity  of  opinion.  In  England,  when  a  competent  witness 
is  called  and  sworn,  the  other  party  will,  ordinarily,  and  in  strict- 
ness, be  entitled  to  cross-examine  him,  though  the  party  calling 
him  does  not  choose  to  examine  him  in  chief ;  *  unless  he  was 
sworn  by  mistake  ;  ^  or,  unless  an  immaterial  question  having  been 
put  to  him,  his  further  examination  in  chief  has  been  stopped  by 
the  judge.*5  And  even  where  a  plaintiff  was  under  the  necessity  of 
calling  the  defendant  in  interest  as  a  witness,  for  the  sake  of  formal 
proof  only,  he  not  being  party  to  the  record,  it  has  been  held,  that 
he  was  thereby  made  a  witness  for  all  purposes,  and  might  be 
cross-examined  to  the  whole  case.^     In  some   of  the   American 

1  The  Lochlibo,  14  Jur.  792 ;  1  Eng.  the  whole  case.  Austin  v.  State,  14  Ark. 
L.  &  Eq.  G45.  Under  a  late  English  stat-  .555.]  [*  If  a  witness  gives  no  testimony 
ute,  17  &  18  Vic.  c.  12-5,  the  English  lin  his  examination  in  chief,  he  cannot  be 
courts  now  allow  the  party  to  contradict  Icross-examined  for  the  purpose  of  dis- 
his  own  witness  by  showing  a  statement  Icrediting  him.  Bracegirdle  v.  Bailey,  1 
made  by  him  in  direct  contradiction  to  his  IE.  &  F.  536.] 

evidence.      Dean    v.  Knight,  1    F.  &   F.  ^  p^rry  v.   Gibson,  1  Ad.   &  El.  48; 

433.     Jackson  v.  Thomason,  10  W.  R.  42.]  Davis  v.  Dale,  1  Mo.  &  M.  514;  Read  v. 

2  If  tlie  witness  dies  after  he  has  been  James,  1  Stark.  R.  132 ;  Rush  v.  Smith, 
examined  in  cliief,  and  before  his  cross-  1  C.  M.  &  R.  94 ;  Summers  v.  Moseley,  2 
examination,  it  has  been  held  that  his  tes-  C.  &  M.  477.  t.  ^to 
timony  is  inadmissible.  Kissam  v.  For-  *  Rex  v.  Brooke,  2  Stark.  R.  472; 
rest,  25  Wend.  G51.  But  in  ecjuitv,  its  Phillips  r.  Eamer,  1  Esp.  857;  Dickinson 
admissibility  is  in  the  discretion  of  the  v.  Shee,  4  Esp.  (37  ;  Regina  v.  Murphy,  1 
coiu-t,    in    view    of    the    circumstances.  Armst.  Macartn.  &  Ogle,  R.  204. 

Gass  V.  Stinson,  3  Sumn.  104-108 ;  infra,  °  Clifford  v.   Hunter,   3  C.  &  P.  16 ; 

§  554.     [Wliere  the  state  has  summoned  Rush  v.  Smith,  1  C.  M.  &  R.  94 ;  Wood 

a    witness,    and    the    witness    has    been  v.  Mackinson,  2  M.  &^Rob.  273. 

sworn,   but  not  examined,   the  prisoner  ^  Crcevy  v.  Carr,  7  C.  &  P.  64. 

has  no  right  to  cross-examine  him  as  to  ''  Morgan  v.  Brydges,  2  Stark.  R.  814. 


CHAP.  III.]  EXAMINATION   OF   WITNESSES.  493 

courts  the  same  rule  has  been  adopt*ed ;  ^  but  in  others,  the  contrary- 
has  been  held; 2  and  the  rule  is  now  considered  by  the  Supreme 
Court  of  the  United  States,  to  be  well  established,  that  a  party  has 
no  right  to  cross-examine  any  Antness,  except  as  to  facts  and  cir- 
cumstances connected  with  the  matters  stated  in  his  direct  exami- 
nation ;  and  that  if  he  wishes  to  examine  him  to  other  matters,  he 
must  do  so  by  making  the  witness  his  own,  and  calling  him,  as 
such,  in  the  subsequent  progress  of  the  cause.^ 

§  446.  The  power  of  cross-examination-  has  been  justly  said  to 
be  one  of  the  principal,  as  it  certainly  is  one  of  the  most  efficacious 
tests,  which  the  law  has  devised  for  the  discovery  of  truth.  By 
means  of  it,  the  situation  of  the  witness  with  respect  to  the  parties, 
and  to  the  subject  of  litigation,  his  interest,  his  motives,  his  in- 
clination, and  prejudices,  his  means  of  obtaining  a  correct  and 
certain  knowledge  of  the  facts  to  which  he  bears  testimony,  the 
manner  in  which  he  has  used  those  means,  his  powers  of  discern- 
ment, memory,  and  description,  are  all  fully  investigated  and 
ascertained,  and  submitted  to  the  consideration  of  the  jury,  before 
whom  he  has  testified,  and  who  have  thus  had  an  opportunity  of 
observing  his  demeanor,  and  of  determining  the  just  weight  and 
value  of  his  testimony.     It  is  not  easy  for  a  witness,  who  is  sub- 


1  Moody  V.  Kowell,  17  Pick.  490,  498  ;  cretion  of  the  jiidge.     Commonwealth  v. 
Jackson    v.   Varick,    7    Cowen,    238;    2  Eastman,  1  Cush.  189, 217.     [*Inarecent^ 
Wend.    166 ;    Fulton    Bank    v.    Stafford,  case  in  New  Jersey,  Donnelly  v.  State,  i 
2  Wend.  488;  [Linsley  r.  Lovely,  26  Vt.  Dntcher,   463,   it   was   decided,  that   the| 
123  ;  Beal  v.  Nichols,  2  Gray,  262.     This  defendant  in  a  criminal  prosecution  couldf 
case  decides  also,  that  where  a  witness  is  not  ask  the  prosecutor's  witness  any  ques^ 
called  only  to  prove  the  execution  of  an  tion  not  connected  with  the  examination| 
instrument,  and  is  cross-examined  gener-  m  chief,  and  which  was  material  only  byi 
ally  by  the  other  party,  the  party  calling  way  of  defence.     But  that  is  not  consist-J 
him  has  not  a  right  to  cross-examine  him  ent  with   the   general    practice    in    sucli^ 
upon  the  new  matter  upon  which  he  was  cases.     All  questions  put  ujion  cross-exam- 
examined  by  the  other  party,  unless  al-  ination  are  supposed  to  be  material  only 
lowed  by  the  court  in  its  discretion  to  do  to  the  adversary's  case.     The  examina- 
so  ;  and  he  cannot  except  to  the  ruling  of  tion  in   chief  is  supposed  to  have  drawn 
the  court  that  as  a  matter  of  law  he  has  out  all  the  testimony  of  the  witness  mate- 
no  right  so  to  cross-examine  him.]  rial  to  the  case  of  the  party  calling  him. 
■■^  Harrison    v.   Rowan,    3   Wash.    580;  And,  whether  the  cross-examination  has 
Ellmaker  v.  Buckley,  16  S.  &  R.  77.  reference  to  the  same  points  raised  by  the 

^  The   Philadelphia  &   Trenton   Rail-  direct  examination,  or  to  others  material 

road  Co.  v.  Stimpson,  14  Peters,  448,  461 ;  to   the  defence,  the  witness  is  to  be  re-  j 

Floyd  V.  Bovaril,  6  Watts  &  Serg.  75.     It  garded  as  the  witness  of  the  party  call-  j 

is  competent  for  the  part}-,  after  having  ing    him.      The    only    proper    doubt    is  | 

closed  liis  case  so  far  as  relates  to  the  evi-  whether  the  adversar}*  shall  be   allowed 

deuce,  to  introduce  additional  evidence,  to  open  his  case  on  cross-examination,  or 

by  the  cross-examination  of  the  witnesses  shall  be  allowed  to  recall  the  witnesses  at 

on  the  other  side,  fur  the  purpose  of  more  the  proper  time  in   putting   in   his  own 

fully  proving  facts  not  already  suthciently  case  ;  and  this  rests  in  the  discretion  of  ' 

proved ;  the  subject  being  within  the  dis-  the  court.     Post,  §  447.] 
VOL.  1.                                             42 


494 


LAW   OF   EVIDENCE. 


[part  III. 


jectcd  to  this  test,  to  impose  'on  a  court  or  jiny ;  for  however 
artful  the  fabrication  of  falsehood  may  be,  it  cannot  embrace  all  the 
circumstances  to  which  a  cross-examination  may  be  extended.^ 


1  1  Stark.  Evid.  IGO,  161.  On  the  sub- 
ject of  examining  anil  cross-exainining 
witnesses  viva  voce,  Qiiintilian  gives  the 
following  instructions :  "  J'rinmm  est, 
iiosse  testnn.  Nam  timitlus  terreri,  stiiltus 
decipi,  iracundus  concitari,  ambiiiosus 
inllari,  longus  proti'ahi  potest;  prudens 
verb  et  coiistans,  vol  tanquain  iiiimlcus  ct 
pervicax  dimittendus  statim,  vel  non 
inierrogatione,  sed  brevi  interlocutione 
patroni,  refutandus  est ;  aut  aliquo,  si 
continget,  urbane  dicto  refrigerandus ; 
aut,  si  quid  in  ejus  vitani  dici  poterit,  in- 
famia  criminum  destruendus.  Probos 
quosdam  et  verecundos  non  aspere  in- 
cessere  proftiit ;  nam  sa^pe,  qui  adversus 
insectantem  pugnassent,  modestia  miti- 
gautur.  Omnis  autem  interrogatio,  aut  in 
causa  est,  aut  extra  vausani.  In  causa 
(sicut  accusatori  pra;cci)iiiuis),  patrouus 
quoque  altius,  unde  nihil  suspccti  sit  re- 
petita  percontatione,  priora  sequentibus 
applicando,  sa;pe  eo  perducit  homines,  ut 
invitis,  quod  prosit,  extorqueat.  Ejus  rei, 
sine  dubio,  nee  discipUna  uUa  in  schoUs, 
nee  exercitatio  traditiu* ;  et  naturali  magis 
acumine,  aut  usu  contingit  luec  virtus. 
*  *  *  Extra  causam  quoque  multa,  quai 
prosint,  rogari  solent,  de  vita  testium 
aliorum,  de  sua  quisque,  si  turpitudo,  si 
humilitas,  si  amicitia  accusatoris,  si  inim- 
icitiie  cum  reo,  in  quibus  aut  dicant  ali- 
quid,  quod  prosit,  aut  in  niendacio  vel 
cupiditate  laidendi  deprehendantur.  Sed 
in  primis  interror/atio  debet  esse  circum- 
specta;  quia  multa  contra  patronos  venuste 
testis  sa3pe  respondet  eique  pra?cipue 
vulgo  favetiir ;  tum  verbis  quam  raaximc 
ex  medio  sumptis ;  ut  qui  rogatur  (is 
autem  sicpius  imperitus)  intelhgat,  aut  ne 
intelligere  se  neget,  quod  interrogantis  non 
leve  frigus  est."  Quintil.  Inst.  Orat.  lib. 
6,  c.  7.  Mr.  Alison's  observations  on  the 
same  subject  are  equally  interesting  both 
to  tiie  student  and  tiie  practitioner.  He 
observes :  "  It  is  often  a  convenient  way 
of  examining,  to  ask  a  witness,  wliether 
such  a  thing  was  said  or  done,  because  the 
thing  mentioned  aids  his  recollection,  and 
brings  him  to  that  stage  of  the  proceed- 
ing oil  which  it  is  desired  tliat  he  should 
dilate.  I5iit  this  is  not  always  fair;  and 
when  any  subject  is  approacheil,  on  which 
his  evidence  is  expecteil  to  be  really  im- 
portant, tlie  proper  course  is  to  ask  him 
what  was  done,  or  what  was  said,  or  to 
tell  his  own  story.  In  tliis  way,  also,  if 
tlie  witness  is  at  all  intelligent,  a  more 
consistent  and  inteUigent  statement  will 


generally  be  got,  than  by  putting  separate 
questions;  for  the  witnesses  generally 
think  over  the  subjects,  on  which  they  are 
to  be  examined  in  criminal  cases,  so  often, 
or  tliey  have  narrated  them  so  frequently 
to  others,  that  they  go  on  much  more 
fluently  and  tlistinctly,  when  allowed  to 
follow  the  current  of  their  own  ideas,  than 
when  they  are  at  every  moment  inter- 
rupted or  diverted  by  the  examining 
counsel.  Where  a  witness  is  evidently 
prevai-iwiting  or  concealing  the  truth,  it 
is  seldom  by  intimidation  or  sternness  of 
manner  that  he  can  be  brought,  at  least 
in  this  country,  to  let  out  the  truth. 
Such'  measures  may  sometimes  terrify 
a  timid  witness  into  a  true  confession ; 
but  in  general  they  only  confirm  a  hard- 
ened one  in  his  falsehood,  and  give  him 
time  to  consider  how  seeming  contradic- 
tions may  be  reconciled.  The  most 
effectual  method  is  to  examine  rapidly 
and  minutely,  as  to  a  number  of  subor- 
dinate and  apparently  trivial  points  in 
his  evidence,  concerning  which  there  is 
little  likelihood  of  his  being  prepared 
with  falsehood  ready  made;  and  where 
such  a  course  of  interrogation  is  skilfully 
laid,  it  is  rarely  that  it  fails  in  exposing 
perjury  or  contrailiction  in  some  parts  of 
the  testimony  whicli  it  is  desired  to  over- 
turn. It  frequently  happens,  that  in  the 
cotn-se  of  such  a  rapid  examination,  iiicts 
most  material  to  the  cause  are  elicited, 
jvhich  are  either  denied,  or  but  jKirtially 
admitted  before.  In  such  cases,  there  is 
no  good  ground  on  which  the  facts  thus 
reluctantly  extorted,  or  which  have  es- 
cajied  the  witness  in  an  miguarded  mo- 
ment, can  be  laid  aside  by  the  jury. 
Without  doubt,  they  come  tainted  from 
the  polluted  channel  through  which  they 
are  adduced  ;  but  still  it  is  generally  easy 
to  distinguish  what  is  true  in  such  depo- 
sitions from  what  is  false,  because  the 
first  is  studiously  withheld,  and  the  sec- 
ond is  as  carefully  put  forth;  and  it  fre- 
quently happens,  tliat  in  this  way  the 
most  important  testimony  in  a  case  is 
extracted  from  the  most  unwilling  wit- 
ness, whicli  only  conies  with  the  more 
ellect  to  an  intelligent  jury,  because  it 
has  emerged  by  the  force  of  examination, 
in  opposition  to  an  obvious  desire  to  con- 
ceal." See  Alison's  Practice,  546,  5-47. 
See  also  the  remarks  of  Mr.  Evans  on 
cross-ex.amination,  in  liis  Appendix  to 
Poth.  on  Obi.  No.  16,  vol.  2,  pp.  233,  234. 


CHIP.  III.]  EXAMINATION  OP  WITNESSES.  495 

§  447.  "Whether,  when  a  party  is  once  entitled  to  cross-examine 
a  witness,  this  rigid  continues  throncjh  all  the  subsequent  stages  of  tho 
cause,  so  that  if  the  party  should  afterwards  recall  the  same  wit- 
ness, to  prove  a  part  of  his  own  case,  he  may  interrogate  him  by 
leading  questions,  and  treat  him  as  the  witness  of  the  party  who 
first  adduced  him,  is  also  a  question  upon  which  different  opinions 
have  been  held.  Upon  the  general  ground,  on  which  this  course 
of  examination  is  permitted  at  all,  namely,  that  every  witness  is 
supposed  to  be  inclined  most  favorably  towards  the  party  calling 
him,  there  would  seem  to  be  no  impropriety  in  treating  him, 
throughout  the  trial,  as  the  witness  of  the  party  who  first  caused 
him  to  be  summoned  and  sworn.  But  as  the  general  course 
of  the  examination  of  witnesses  is  su]j»ject  to  the  discretion  of 
the  judge,  it  is  not  easy  to  esta1)lish  a  rule,  which  shall  do  more 
than  guide,  without  imperatively  controlling  the  exercise  of  that 
discretion. 1  A  party,  however,  who  has  not  opened  his  own  case, 
will  not  be  allowed  to  introduce  it  to  the  jury  by  cross-examining 
the  witnesses  of  the  adverse  party ,2  though,  after  opening  it,  he 
may  recall  them  for  that  purpose. 

§  448.  We  have  already  stated  it  as  one  of  the  rules,  governing 
the  production  of  testimony,  that  the  evidence  offered  must  cor- 
respond with  the  allegations,  and  be  confined  to  the  point  in  issue. 
And  we  have  seen  that  this  rule  excludes  all  evidence  of  collateral 
facts,  or  those  which  afford  no  reasonable  inference  as  to  the 
principal  matter  in  dispute.^  Thus,  where  a  broker  was  examined 
to  prove  the  market  value  of  certain  stocks,  it  was  held  that  he 
was  not  compellable  to  state  the  names  of  the  persons  to  whom 
he  had  sold  such  stocks.*  As  the  plaintiff  is  bound,  in  the  proof 
of  his  case,  to  confine  his  evidence  to  the  issue,  the  defendant  is 
in  like  manner  restricted  to  the  same  point ;  and  the  same  rule 
is  applied  to  the  respective  parties,  through  all  the  subsequent 
stages  of  the  cause ;  all  questions  as  to  collateral  facts,  except  in 
cross-examination,  being  strictly  excluded.      The  reasons  of  this 

1  1  Stark.  Evid.  162 ;  Moody  v.  Rowell,  the  defendant  besjan  to  cross-examine  him 
17  Pick.  498 ;  futpm,  §  435.  as  to  matters  of  defence,  and  the  court 

2  EUmake'r  r.  Buikley,  16  S.  &  R.  77;  ruled  — tliat  this  cross-examination  should 
1  Stark.  Evid.  1G4.  [The  rule  in  the  text  be  deferred  until  the  defendant's  case  was 
is  stated  to  be  the  strict  rule  in  Burke  v.  opened,  when  the  witness  beinpr  recalled, 
Miller,  7  Cush.  547,  550,  althonsh  a  de-  could  be  cross-examine<l  by  the  defendant ; 
parture  fi-om  it,  being  discretionary  with  and  this  ruling-  was  sustained.  See  Moody 
the  judge,  is  not  open  to  exception.     At  v.  Kowell,  17  Pick.  499.] 

the  trial  of  this  cause  in  the  court  below,  ^  Snjira,  §§  51,  52. 

the  plaintiff  called   a  witness  merely  to  *  Jonau  v.  Ferrand,  3  Kob.  Louis.  R. 

prove  the  formal  eiecutiou  of  a  deed,  and    36G. 


496  LAW   OF   EVIDENCE.  [PART   III. 

inilc  have  been  already  intimated.  If  it  were  not  so,  tlie  true 
merits  of  the  controversy  might  be  lost  sight  of,  in  the  mass  of 
testimony  to  other  points,  in  Which  they  would  be  overwhelmed ; 
the  attention  of  the  jury  would  be  wearied  and  distracted ;  judicial 
investigations  would  become  interminable  ;  the  expenses  might  be 
enormous,  and  the  characters  of  witnesses  might  be  assailed  by 
evidence  which  they  could  not  be  prepared  to  rcpel.^  It  may  be 
added,  that  the  evidence  notjjeing  to  a  material  point,  the  witness 
could  not  be  punished  for  perjury,  if  it  were  false.^ 

§  449.  In  cross-examinations,  however,  this  rule  is  not  usually 
applied  with  the  same  strictness  as  in  examinations  in  chief;  but 
on  the  contrary,  great  latitude  of  interrogation  is  sometimes  per- 
mitted by  the  judge,  in  the  exercise  of  his  discretion,  where,  from 
the  temper  and  conduct  of  the  witness,  or  other  circumstances, 
such  course  seems  essential  to  the  discovery  of  the  truth,^  or,  where 
the  cross-examiner  will  undertake  to  show  the  relevancy  of  the 
interrogatory  afterwards,  by  other  evidence.^  On  this  head,  it  is 
difficult  to  lay  down  any  precise  rule.^  But  it  is  a  well-settled 
rule,  that  a  witness  cannot  he  cross-examined  as  to  any  fci<^i^  which 
is  collateral  and  irrelevant  to  the  issue  merely _  for  the  purpose  of 
contradicting  him  by  other  evidence,  if  he  should^deiij  it,  thereby 
to  discredit  his  testimoiyLiL  And,  if  a  question  is  put  to  a  witness 
which  is  collateral  or  irrelevant  to  the  issue,  his  answer  cannot 
be  contradicted  by  the  party  who  asked  tlie  question ;  but  it  is 
conclusive  against  him.'^     But  it  is  not  irrelevant  to.  inquire  of  the 

1  Phil.  &  Am.  on  Evid.  900,  910.  157,  158  ;  Palmer  r.  Trower,  14  Eng.  L. 

2  15ut  a  (lueslion,  having  no  bearing  on  &  Eq.  K.  470.  Tims,  if  he  is  asked 
the  matter  in  issue,  may  ho  made  material  wliethcr  lie  has  not  said  to  A  that  a  bribe 
by  its  relation  to  the  witness's  credit,  and  had  been  ottered  to  him  by  the  party  by 
false  swearing  thereon  will  be  perjury,  whom  he  was  called  ;  and  he  denies  having 
Reg.   V.   Overton,  2  Mod.   Cr.   Gas.  263.  so  said  ;  evidence  is  not  admissible  to  prove 

"  [Mayhew  v.  Thayer,  8  Gray,  172.]  that  he  did  so  state  to  A.     Attorney-Gen. 

<  liaigh  V.  Belcher,  7  C.  &  P.  389;  su-  v.  Hitchcock,  11  Jur.  478;  1  Exch.  R.  91, 

pra,  §  52.  s.  c.      So  where  a  witness  was  asked,  on 

^  hawrence  v.  Barker,  5  Wend.  305.  cross-examination,  and  for  the  sole   pur- 

^  Spenceley  V.  De  Willott,  7  East,  108 ;  pose  of  affecting  his  credit,  wdiether  he 

1  Stark.  Evid.  1(54;  Lee's  case,  2  Lewin's  liad  not  made  false  re])resentations  of  the 

Cr.  Cas.  154 ;  Harrison  v.  Gordon,  Id.  156 ;  adverse  party's  responsibility,  his  negative 

[Coombs  V.  Winchester,  39  N.  Ilamp.  1.]  answer  was  held  conclusive   against  the 

[*llennian  v.  Lester,  12  C.  B.N.  s.  776;  party  cross-examining.     Howard  v.  City 

8.  c.  9  Jur.  N.  s.  601.]  Eire  Ins.  Co.  4  Denio,  502.     But  where  a 

T  Harris    v.    Tippett,   2   Camph.   627;  witness,  on  his  cross-examination,  denied 

Odiorne  v.  Winkley,  2  Gall.  51,  53;  Ware  that  he  had  attempted  to  suborn  another 

V.  AV.are,  8  Greenl.  52;  Kex  v.  Watson,  2  person  to  testify  in  favor  of  the  i>arty  who  . 

Stark.  R.  116,  149;  Lawrence  r.  Barker,  liad  summoned  him,  it  was  held,  that  his , 

5  Wend.  301,  305;  JVIeagoe  i\  Simmons,  3  answer  was  not  conclusive,  and  tliat  testi- 

C.  &  V.  75;  Crowley  v.  I'age,  7  C.  &  P.  mony  was  aihnissihle  to  contradict  him,  as 

789;  Commonwealth  y.  Buzzell,  16  Pick,  it  materially  atlected  his  credibility.    Mor- 


CHAP.  III.] 


EXAMINATION   OF   WITNESSES. 


497 


a  dif-  /> 


witness,  whether  he  has  not  on  some  former  occasion  given 
ferent  account  of  the  matter  of  fact,  to  which  he  has  abeady  testi- 
fied, in  order  to  lay  a  foundation  for  impeaching  his  testimony  hy 
contradicting  him.  The  in(niiry,  however,  in  such  cases,  must 
be  confined  to  matters  of  fact  only  ;  mere  opinions  whicli  the  wit- 
ness may  have  formerly  expressed  being  inadmissiljle,  unless  the 
case  is  such  as  to  render  evidence  of  opinions  admissible  and 
material. 1  Thus,  if  the  witness  should  give,  in  evidence  in  chief, 
his  opinion  of  the  identity  of  a  person,  or  of  his  handwriting,  or 
of  his  sanity,  or  the  like,  he  may  be  asked  whether  he  has  not 
formerly  expressed  a  dificrcnt  opinion  upon  the  same  sulyect ;  but 
if  he  has  simply  testified  to  a  fact,  his  previous  opinion  of  the 
merits  of  the  case  is  inadmissible.  Therefore,  in  an  action  upon 
a  marine  policy,  where  the  broker,  who  effected  the  policy  for  the 
plaintiff,  being  called  as  a  witness  for  the  defendant,  testified  that 
he  omitted  to  disclose  a  certain  fact,  now  contended  to  be  material 


gan  V.  Frees,  s.  c.  N.  York,  1  Am.  Law 
Reg.  92.  Where  a  witness,  called  by  the 
plaintitf  to  prove  the  handwriting  in  issue, 
swore  it  was  not  that  of  the  defendant,  and 
another  paper,  not  evidence  in  the  cause, 
being  shown  to  him  by  the  plaintiff,  he 
swore  that  this  also  was  not  the  defend- 
ant's, the  latter  answer  was  conclusive 
against  the  plaintiti'.  Hughs  i'.  Rogers,  8 
M.  &  W.  123.  See  also  Griffiths  v.  Ivery, 
11  Ad.  &  El.  322  ;  Philad.  &  Trenton  Rail- 
road Co.  V.  Stimpson,  14  Peters,  4(31 ; 
Harris  v.  Wilson,  7  Wend.  57 ;  Tennant  v. 
Hamilton,  7  Clark  &  Fin.  122 ;  The  State 
V.  Patterson,  2  Iredell,  R.  346.     [The  rule 

^wliich  excludes  all  evidence  tending  to 
contradict  the  statements  of  a  witness  as 
to  collateral  matters  does  not  apply  to  any 
facts  immediately  and  properly  connected 

^•ith  the  main  subject  of  inquiry.  Every 
thing  which  goes  to  affect  the  credit  of  a 
witness,  as  to  the  particular  facts  to  which 
he  is  called  to  testify,  is  material  and  ad- 
missible. Thus,  where  testimony  to  a 
fact  is  founded  mainly  upon  a  written 
memorandum  which  the  witness  testifies 
was  made  by  himself  at  the  time,  and 
which  was  produced  by  him  at  a  former 
trial,  and  since  has  been  lost,  the  other 
party  may  show,  for  the  purpose  of  dis- 
crediting the  witness,  that  the  memoran- 
dum then  produced  was  not  in  his  hand- 
writing. Commonwealth  v.  Hunt,  4  Gray, 
421.  In  Harrington  v.  Lincoln,  2  Gray, 
133,  a  witness  on  cross-examination  by  the 
plaintiff  answered  in  the  negative  the  fol- 
lowing question :  "  Did  you  not  say  to  W. 
(another  witness),  after  he  had  lefl  the 


stand,  that  if  you  had  been  on  the  stand  in 
his  place,  when  cross-examined  by  the  de- 
fendant's counsel,  you  would  have  said 
something,  even  if  it  had  been  untrue'?" 
and  it  was  held,  that  the  plaintiff  could 
not  be  allowed  to  contradict  tliis  answer 
by  other  evidence,  because  it  was  collat- 
eral, and  did  not  tend  to  show  anj'  par- 
tiality or  bias  on  the  part  of  the  witness  in 
favor  of  the  defendant,  or  any  attempt  to 
influence  or  induce  W.  to  give  false  tes- 
timony favorable  to  the  defendant ;  had  it 
been  of  that  character,  it  would  have  been 
competent  to  put  in  the  contradictory  evi- 
dence. See  also  Commonwealth  v.  God- 
dard,  2  Allen,  148.] 

1  Elton  V.  Larkins,  5  C.  &  P.  385; 
Daniels  v.  Conrad,  4  Leigh's  R.  401,  405. 
But  a  witness  cannot  be  cross-cxamined_ 
as  to  what  he  has  sworn  in  an  affidavit, 
unless  the  affidavit  is  produced.  Sainthill 
V.  Round,  4  Esp.  74;  Rex  v.  Edwards,  8 
C.  &  1'.  26;  Regina  v.  Taylor,  Id.  726. 
If  the  witness  does  not  recollect  saying 
that  which  is  imputed  to  him,  evidence 
may  be  given  that  he  did  say  it,  provided 
it  is  relevant  to  the  matter  in  issue.  Crow- 
ley ('.  Page,  7  C.  &  P.  789.  [Nute  v.  Nute, 
41  N.  H.  60.  Nor  is  it  competent  to  show 
that  the  witness  has  given  an  opinion  out 
of  court  relative  to  the  subject-matter  of 
the  suit,  inconsistent  with  the  conclusion 
whicli  the  facts  he  testifies  to  at  the  trial 
will  warrant.  The  statement  must  not 
only  relate  to  the  issue,  but  be  a  matter  of 
fact,  and  not  merely  a  former  opinion. 
Holmes  i'.  Anderson,  18  Barb.  420.J 


42* 


^ 


498  LAW    OF    EVIDENCE.  [PART   III. 

to  the  risk,  and  being  cross-examined  whether  he  had  not  expressed 
his  opinion  that  the  underwriter  had  not  a  leg  to  stand  upon  in 
the  defence,  he  denied  that  he  had  said  so ;  this  was  deemed 
conchisive,  and  evidence  to  contradict  him  in  this  particular  was 
rejected.^ 

§  450.  So,  also,  it  has  been  held  not  irrelevant  to  the  guilt  or 
innocence  of  one  charged  with  a  crime,  to  inquire  of  the  witness 
for  the  prosecution,  in  cross-examination,  whether  he  has  not 
expressed  feelings  of  hostility  towards  the  prisoner.^  The  like 
inquiry  may  be  made  in  a  civil  action ;  and  if  the  witness  denies 
the  fact,  he  may  be  contradicted  Ijy  other  witnesses.^  So,  also, 
in  assumpsit  upon  a  promissory  note,  the  execution  of  which  was 
disputed,  it  was  held  material  to  the  issue,  to  inquire  of  the  sub- 
scribing witness,  she  being  a  servant  of  the  i^laintiff,  whether  she 
was  not  his  kept  mistress.* 

§  451.  In  regard  to  the  privile(ye  of  tvitnesses,  in  not  being  com- 
jyeUahle  to  answer,  the  cases  are  distinguishable  into  several  classes. 
(1.)  Where  it  reasonably  appears  that  the  answer  will  have  a 
tendency  to  expose  the  witness  to  a  penal  liability,  or  to  any  kind 
of  punishment,  or  to  a  criminal  charge.  Here  the  authorities  are 
exceedingly  clear  that  the  witness  is  not  bound  to  answer.^  And 
he  may  claim  the  protection  at  any  stage  of  the  inquiry,  whether 
he  has  already  answered  the  question  in  part,  or  not  at  all.^  If 
the  fact  to  which  he  is  interrogated  forms  but  one  link  in  the 
chain  of  testimony,  which  is  to  convict  him,  he  is  protected.  And 
whether  it  may  tend  to  criminate  or  expose  the  witness  is  a  point 
upon  which  the  court  are  bound  to  instruct  him ; '''  and  which  the 


1  Elton  V.  Larkins,  5  C.  &  P.  385.  pcllcd  to  answer,  what  he  says  will  be  re- 

2  Eex  V.  Yewin,  cited  2  Campb.  638.  garded   as   obtaiiieil   by  coiiipulsion,  and 
8  Atwood  V.  Welton,  7  Conn.  GG  ;  [Jlar-  cannot  be  given  in  evidence  against  him. 

tin  V.  Farnliam,  5  Foster,  l'J5;  Drew  v.  Kegina  v.  Garbett,  1  Denis.  C.  C.  23G;  2 

"Wood,   6   lb.   363 ;   Cooley  v.  Norton,  4  Car.  &  K.  474.    ^Vnd  see  supra,  §  193 ;  7 

Cush.   03 ;   Long  v.  Lamkin,  9  lb.  3G1 ;  Law  Kev.  19-30. 

Newton  ;;.  Harris,  2  Selden,  345 ;  Com-         "^  Kegina  v.  Garbett,  1  Denis.  C.  C.  236  ; 

monwealth  v.  Byron,  14  Gray,  31.]  2  Car.  &  K.  474 ;  ex  parte  Cossens,  Buck, 

*  Thomas  v.  David,  6  C.  &  P.  350,  per  Bankr.  Cas.  531,  515.     [If  a  witness  dis- 

Coleridge,  J.  closes  part  of  a  transaction  in  wlncli  he 

"  Sot'.th'ard  i\  Rexford,  6  Cowen,  254;  was  criminally  concerned,  without  claim- 

1  Burr's  Trial,  245;  E.  India  Co.  v.  Camp-  ing  ins  privilege,  he  must  then  proceed  to 

bell,  1  Ves.  227  ;  Paxton  v.  Douglass,  19  state  the  whole,  if  what  he  has  disclosed 

Ves.  225;  Gates  ?\  Ilardacre,  3   Taunt,  is  clearly  a  part  of  tlie  transaction ;  other- 

424;  MacBride  r.  IMacBride,  4  Esp.  248 ;  wise   not.     Coburn   v.    Odell,    10  Foster, 

Kex  V.  Lewis,  Id.  225 ;  Hex  v.  Slaney,  5  640 ;  Norfolk  v.  Gaylord,  28  Conn.  309.] 
C.  &P.  213;  Rex/'.  Pegler,  5  C.  &P.  521;         ^  Close   v.   Olney,   1    Denio,   R.   319. 

Dodd  V.  Norris,  3  Cami)b.  51'.J ;  Malony  v.  [See   Commonwealth  v.   Siiaw,  4   Cush. 

Bartly,  Id.  210.     If  he  is  wrongfully  com-  594.] 


CHAP.  III.] 


EXAMINATION   OF   WITNESSES. 


409 


court  will  determine,  under  all  the  circumstances  of  the  case  ;  ^ 
but  without  requiring  the  witness  fully  to  ex})lain  how  he  might 
be  criminated  by  the  answer,  which  the  truth  would  oblige  him  to 
give.  For  if  he  were  obliged  to  show  how  the  effect  would  be 
produced,  the  protection  which  this  rule  of  law  is  designed  to 
afford  him  would  at  once  be  annihilated.^     But  the  court  will  not 


^  This  point,  however,  is  not  univer- 
sally a{;rced.  In  Fisher  v.  Ronalds,  17 
Jur.  3'J3,  Jervis,  C.  J.,  and  IMaule,  J., 
were  of  opinion  that  it  was  for  tlie  witness 
to  say,  on  his  oath,  wlietlier  he  believed 
that  tlie  question  tended  to  eriniinate  liini; 
and  if  he  did,  that  his  answer  was  conclu- 
sive. Williams,  J.,  tiioujiht  the  point  not 
necessary  then  to  be  decided,  [s.  c.  IG 
Eng.  Law  &  Eq.  417,  and  note.  See  also 
Osborne  v.  London  Dock  Co.  29  lb.  389 ; 
Jauvrin  v.  Scanunon,  9  Foster,  280.] 
[*  Fernandez,  t.c  parte,  10  C.  B.  \.  s.  3.] 

■^  The  People  v.  Mather,  4  Wend.  229 ; 
1  Burr's  Trial,  245 ;  Southard  v.  Hexford, 
(5  Cowen,  2-54,  2-55  ;  Bellinger,  in  error,  v. 
The  People,  8  AVend.  595.  In  the  tirst  of 
these  cases,  this  doctrine  M-as  stated  by 
the  learned  j  udgo,  in  the  following  terms  : 
"  The  principal  reliance  of  the  defendant, 
to  sustain  tlie  determination  of  the  judge, 
is  placed,  I  presume,  on  the  rule  of  law, 
that  protects  a  witness  in  refusing  to  an- 
swer a  question  which  will  have  a  tenden- 
cy to  accuse  him  of  a  crime  or  misde- 
meanor. Wiiere  the  disclosures  he  may 
make  can  be  used  against  him  to  procure 
his  conviction  for  a  criminal  offence,  or  to 
charge  him  with  penalties  and  forfeitiures, 
he  may  stop  in  answering,  before  he  ar- 
rives at  the  question,  the  answer  to  which 
may  show  directly  his  moral  turpitude. 
The  witness,  who  knows  what  the  court 
does  not  know,  and  what  he  cannot  com- 
municate without  being  a  self-accuser,  is 
to  judge  of  the  eflect  of  his  answer,  and  if 
it  proves  a  link  in  the  chain  of  testimony, 
which  is  sufficient  to  convict  him,  wlien 
the  otiiers  are  made  known,  of  a  crime, 
he  is  protected  by  law  fi-om  answering  the 
question.  If  there  be  a  series  of  ques- 
tions, the  answer  to  all  of  wliich  would 
establish  Ids  criminality,  the  party  cann(jt 
pick  out  a  particular  one  and  say,  if  that 
be  put,  the  answer  will  not  criminate  him. 
'  If  it  is  one  step  having  a  tendency  to 
criminate  him,  he  is  not  compelled  to  an- 
swer.' (16  Ves.  242.)  The  same  privi- 
lege that  is  allowed  to  a  witness  is  the 
right  of  a  defendant  in  a  court  of  equity, 
when  called  on  to  answer.  In  I'arkhurst 
V.  Lowten,  2  Swanst.  215,  the  chancellor 
held,  that  the  defendant '  was  not  only  not 
boimd  to  answer  the  question,  the  answer 


to  which  would  crinunate  him  directly, 
but  not  any  which,  however  remotely  con- 
nected with  the  fact,  would  have  a  tend- 
ency to  prove  him  guilty  of  simony.' 
Tlie  language  of  Chief  Justice  Marshall, 
on  Burr's  trial,  is  equally  explicit  on  this 
point.  '  JMany  links,'  he  says,  '  fi-equently 
compose  tliat  chain  of  testimony,  which  is 
necessary  to  convict  an  individual  of  a 
crime.  It  appears  to  the  court  to  be  the 
true  sense  of  the  rule,  that  no  witness  is 
compellable  to  furnish  any  one  of  them 
against  himself.  It  is  certainly  not  only  a 
possible  but  a  probable  case,  tiiat  a  wit- 
ness, by  disclosing  a  single  fact,  may  com- 
plete the  testimony  against  himself,  and, 
to  every  effectual  purpose,  accuse  himself 
entirely  as  he  would  by  stating  every  cir- 
cumstance, which  would  be  required  for 
liis  conviction.  That  fact  of  itself  would 
be  unavailing,  but  all  other  facts  without 
it  would  be  insufficient.  While  that  I'e- 
mains  concealed  in  liis  own  bosom,  he  is 
safe,  but  draw  it  from  thence,  and  he  is 
exposed  to  a  prosecution.  The  rule  which 
declares  that  no  man  is  compellable  to  ac- 
cuse himself  would  most  obviously  be 
intringed,  by  compelling  a  witness  to  dis- 
close a  fact  of  this  description.'  (1  Burr's 
Trial,  244.)  My  conclusion  is,  that  where 
a  witness  claims  to  be  excused  from  an 
swering  a  question,  because  the  answer 
may  disgrace  him,  or  render  him  inla- 
nious,  the  court  must  see  that  the  answer 
may,  without  the  intervention  of  other 
facts,  fix  on  him  moral  turpitiule.  Where 
he  claims  to  be  excused  from  answering, 
because  his  answer  will  have  a  tendency 
to  implicate  him  in  a  crime  or  misde- 
meanor, or  will  expose  him  to  a  penalty 
of  forfeiture,  then  the  court  are  to  deter- 
mine, whether  the  answer  he  may  give  to 
the  question  can  criminate  him,  directly 
or  inihrectly,  by  furnishing  direct  evidence 
of  his  guilt,  or  by  establishing  one  of  many 
facts,  which  together  may  constitute  a 
chain  of  testimony  sufficient  to  warrant 
his  conviction,  but  which  one  fact  of  itself 
could  not  produce  such  result ;  and  if  they 
think  the  answi^-r  may  in  any  wa}'  crimi- 
nate him,  they  must  allow  his  privilege, 
without  exacting  from  him  to  explain  how 
lie  would  be  criminated  by  tlie  answer, 
which  the  truth  may  oblige  him  to  give. 


500  LAW   OF   EVIDENCE.  [PART  III. 

prevent  the  witness  from  answering  it,  if  he  chooses ;  they  will 
only  advertise  him  of  his  right  to  decline  it.^  This  rnlo  is  also 
administered  in  chancery,  where  a  defendant  will  not  Ijc  com})elled 
to  discover  that  which,  if  answered,  wuidd  tend  to  snl)ject  him  to 
a  penalty  or  })nnisliment,  or  which  might  lead  to  a  criminal  accu- 
sation, or  to  ecclesiastical  censures.^  But  in  all  cases  where  the 
witness,  after  being  advertised  of  his  privilege,  chooses  to  answer, 
he  is  l)oiind  to  answer  every  thing  relative  to  the  transaction .^ 
But  the  privilege  is  his  own,  and  not  that  of  the  i)arty ;  counsel, 
therefore,  will  not  be  allowed  to  make  the  objection.^  If  the 
witness  declines  answering,  no  inference  of  the  truth  of  the  fact 
is  permitted  to  be  drawn  from  that  circumstance.^  And  no  answer 
forced  from  him  by  the  presiding  judge,  after  he  has  claimed 
protection,  can  be  afterwards  given  in  evidence  against  him.^ 
If  the  prosecution,  to  which  he  might  be  exposed,  is  barred  by 
lapse  of  time,  the  privilege  ceases,  and  the  witness  is  bound  to 
answer.' 

[  *  §  451«.  It  seems  that  in  some  of  the  states,  where  the  party 
gives  testimony  to  part  of  a  transaction  without  claiming  his 
privilege  of  not  testifying  to  what  may  criminate  him,  he  may  be 
compelled  to  state  the  whole ;  ^  and  to  submit  to  a  full  cross- 
examination,  notwithstanding  his  answers  tend  to  criminate  or  dis- 
grace him.^  But,  in  general,  a  witness  who  proceeds  inadvertently, 
and  without  expecting  to  be  asked  to  give  testimony  upon  pointj 
affecting  his  character  or  subjecting  him  to  prosecution  for^  crimCj 

If  the  witness  was  obliged  to  show  how  note ;  Ilex  v.   Adey,   1   M.   &  Rob.   94 ; 

tlie  efiect  is  produced,  tlie  protection  would  [Commonwealth  r.  Shaw,  4  Cush.  594.] 

at  once  be  annihilated.     The  means  whicli  ^  liose  v.  Blakemore,  Ey.  &  M.  383  ; 

he  would  be  in  tiiat  case  conipolied  to  use  [Pliealing   v.  Kenderdine,    20   Penn.    St. 

to   obtain  protection   would   involve    the  11.  354 ;  Carne  v.  Litchfield,  2  Mich.  340. 

surrender  of  the  very  object,  for  the  se-  See  Boyle  v.  Wiseman,  29  Eng.  Law  & 

curity  of  which  the  protection  was  sought."  Eq.  473,  where  the  witness  who  claimed 

See  4  Wend.  252,  253, 254.    See  also  Short  the  privilege  was  one  of  the  parties  to  the 

I'.  Mercior,  15  Jur.  93 ;  1  Eng.  Law  &  Eq.  suit.] 

Rep.  208,  where  the  same  point  is  dis-  "^  Reg.  v.  Garbett,  2  C.  &  K.  474.     In 

cussed.  Connecticut,  by  Rev.  Stat.  1849,  tit.  6,  § 


1  4  Wend.  252,  253,  254. 

2  Story's  Eq.  PI.  §§  524,  576,  577,  592- 
698;  Mclntyre  v.  Mancius,  16  Johns.  592; 
Wigram  on  Discover}',  pp.  61,  150,  195 
(1st  Am.  edit.);  Id.  §§  130-133,  271  (2d 
Lond.  edit.) ;  Mitford's  Eq.  PI.  157-163. 


161,  it  is  enacted,  tliat  evidence  given  by  a 
witness  in  a  criminal  case,  shall  not  "be 
at  any  time  construed  to  his  prejudice." 
Such,  in  substance,  is  also  the  law  of  I7r- 
i/liii(r.  See  Tate's  Dig.  p.  340 ;  Virg.  Code 
of  1849,  ch.  199,  §  22. 


8  Dixon  V.  Vale,  1  C.  &  P.  278;  The         ^  Roberts  v.  AUatt,  1  M.  &  Malk.  192; 

State  V.  K ,  4  N.  Ilamp.  562;  East  v.  The  People  v.  Mather,  4  Wend.  229,  252- 

Cliapman,  1  M.  &  Malk.  46  ;  2  C.  &  P.  570,  255. 

s.  c. ;  Low  V.  Mitchell,  (5  Sliepl.  272 ;  [Fos-         »  [  *  Coburn  v.  Odell,  10  Foster,  540. 

ter  V.  Pierce,  11  Cush.  437,  439.]  ^  Norfolk  r.  Gaylord,  28  Conn.  309.] 

*  Tiioraas  v.  Newton,  1  M.  &  Malk.  48, 


CHAP.  III.]  EXAMINATION   OF   WITNESSES.  501 

will  be  accorded  his  privilege,  when  claimed,  although  the  result 
should  be  to  strike  his  testimony  from  the  case  after  it  had  been 
partly  taken  down.^  The  witness  must  himself  judge,  in  the 
first  instance,  whether  the  answers  sought  will  tend  to  prove  him 
guilty  of  a  crime.  Unless  he  is  able  to  testify  that  he  believes  they 
will,  he  is  not  entitled  to  claim  the  privilege.  If  he  informs  the 
court,  upon  oath,  that  he  cannot  testify,  without  criminating  him- 
self, the  court  cannot  compel  him  to  testify,  unless  fully  satisfied 
such  is  not  the  fact,  i.e.,  that  the  witness  is  either  mistaken,  or 
acts  in  bad  faith ;  in  either  of  which  cases  they  should  compel 
him  to  testify.^  But  where  the  reason  for  not  giving  testimony 
assigned  by  the  witness  is  evidently  insufficient,  the  court  should 
compel  him  to  testify .^  It  is  not  important  that  the  witness  is 
really  innocent,  if  his  answers  will  place  him  in  a  position  where 
he  could  not  exculpate  himself  from  legal  presumptions,  although 
contrary  to  the  fact.*  But  if,  for  any  cause,  the  testimony  cannot 
be  used  against  the  witness,  he  is  not  privileged ;  ^  nor  can  he 
claim  exemption  from  testifying  merely  because  his  testimony  will  A 
give  a  clue  to  evidence  against  him.  Nor  will  the  fact  that  the!  j 
direct  examination  will  not  tend  to  criminate  the  witness  be  suffi-j  * 
cient,  if  proper  questions  on  cross-examination  will.^] 

§  452.  (2.)  Where  the  witness,  by  answenng,  may  subject  him- 
self to  a  civil  action  or  pecuniary  loss,  or  charge  himself  with  a  debt. 
This  question  was  very  much  discussed  in  England,  in  Lord  Mel- 
ville's case;  and,  being  finally  put  to  the  judges  by  the  House 
of  Lords,  eight  judges  and  the  chancellor  were  of  opinion  that 
a  witness,  in  such  case,  was  bound  to  answer,  and  four  thought 
that  he  was  not.  To  remove  the  doubts  which  were  thrown  over 
the  question  by  such  a  diversity  of  opinion  among  eminent  judges, 
a  statute  was  passed,'^  declaring  the  law  to  be,  that  a  witness 
could  not  legally  refuse  to  answer  a  question  relevant  to  the 
matter  in  issue,  merely  on  the  ground  that  the  answer  may  estab- 
lish, or  tend  to  establish,  that  he  owes  a  debt,  or  is  otherwise 
subject  to  a  civil  suit ;  provided  the  answer  has  no  tendency  to 
accuse  himself,  or  to  expose  him  to  any  kind  of  penalty  or  for- 

1  [*  Dixcn  V.  Vale,  1  C.  &  P.  278,  by         *  The  People  v.  KeUy,  2-4  N.Y.  Ct.  App. 

'Best,  C.J.  74. 

-  Chamberlain   v.  Willson,  12  Vt.  R.         *5  Printz  v.  Cheeney,  11  Iowa,  469.] 
491.  ~,-iCj  Geo.  III.  c.  87 ;  2  Pliil.  Evid.  420 ; 

3  Mexico  &  S.  A.  Co.  in  re ;  Ashton'3  1  Stark.  Evid.  16-5.     It  is  so  settled  by 

case,  4  DeG.  &  J.  320 ;  s.  c  27  Beav.  474.  statute  in  Xew  York.    2  Rev.  Stxit.  405, 

■*  Adams  v.  Lloyd,  4  Jur.  n.  s.  5'JO.  §  71. 


502 


LAW   OF   EVIDENCE. 


[part   III. 


feiturc.  In  the  United  States,  this  act  is  generally  considered  as 
declaratory  of  the  true  doctrine  of  the  common  law ;  and,  accord- 
ingly, )3y  the  current  of  authorities,  the  witness  is  held  bound  to 
answer.^  But  neither  is  the  statute,  nor  the  rule  of  the  common 
law,  considered  as  compelling  a  person  interested  in  the  cause  as 
party,  though  not  named  on  the  record,  to  testify  as  a  witness 
in  the  cause,  much  less  to  disclose  any  thing  against  his  own 
interest.^ 

§  453.  (3.)  Where  the  answer  will  subject  the  witness  to  a 
forfeiture  of  his  estate.  In  this  case,  as  well  as  in  the  case  of  an 
exposure  to  a  criminal  prosecution  or  penalty,  it  is  well  settled 
that  a  witness  is  not  bound  to  answer.^  And  this  is  an  established 
rule  in  equity,  as  well  as  at  law.* 

§  454.  (4.)  Where  the  answer,  though  it  will  not  expose  the 
witness  to  any  criminal  prosecution  or  penalty,  or  to  any  forfeiture 
of  estate,  yet  has  a  direct  tendency  to  degrade  Ids  character.  On 
this  point  there  has  been  a  great  diversity  of  opinion,  and  the  law 
still  remains  not  perfectly  settled  by  authorities.^     But  the  conflict 


1  Bull  V.  Loveland,  10  Pick.  9 ;  Baird 
V.  Cochran,  4  S.  &  R.  3'J7 ;  Xass  v.  Van 
Swearingen,  7  S.  &  K.  19J;  Taney  v. 
Kemp,  4  H.  &  J.  348 ;  Naylor  v.  Scmnies, 
4  G.  &  J.  273 ;  City  Bank  v.  Batcinan,  7 
H.  &  J.  104 ;  Stoddart  v.  .Manning,  2  II.  & 
G.  147 ;  Copp  V.  Upham,  3  N.  Hanip.  lo'.J ; 
Cox  V.  Hill,  3  Ohio  R.  411,  424;  Planters' 
Bank  v.  George,  G  Martin,  679,  n.  s.  ; 
Jones  V.  Lanier,  2  Dev.  Law  Rep.  480; 
Conover  v.  Bell,  6  Monroe,  157 ;  Gorhani 
V.  Carroll,  3  Littel,  221 ;  Zollicotfer  v.  Tur- 
ney,  6  Yerger,  297 ;  Ward  v.  Sharp,  15 
Verm.  115.  The  contrary  seems  to  have 
been  held  in  Connecticut.  Benjamin  v. 
^^athaway,  3  Conn.  528,  532.  [An  action 
will  not  lie  against  a  witness,  who,  in  the 
due  course  of  judicial  proceeding,  has  ut- 
tered false  and  defamatory  statements 
concerning  the  plaintiff,  even  though  he 
did  so  maliciously  and  without  reasonable 
and  iirobable  cause,  and  the  plaintifl"  suf- 
fered damages  m  consequence.  Revis  r. 
XSmith,  3(3  Kng.  Law  &  Eq.  268,  272,  273.] 
\  -  Rex  V.  Woburn,  10  East,  395 ;  Mau- 
rfln  V.  Lamb,  7  Cowen,  174 ;  Appleton  v. 
Boyd,  7  Mass.  131 ;  Fenn  v.  Granger,  3 
Campb.  177;  The  People  v.  Irving,  1 
Wend.  20;  White  v.  Everest,  1  Verm. 
181. 

3  6  Cobbett's  P.  D.  167 ;  1  HaU's  Law 
J.  223 ;  2  Phil.  Evid.  420. 

1  .Mitford's  Eq.  PI.  157,  161 ;  Story's 
Eq.  PI.  §§  607,  846. 


^  The  arguments  on  the  respective 
sides  of  this  question  are  thus  summed  up 
by  Mr.  Phillips :  "  The  advocates  for  a 
compulsory  power  in  cross-examination 
maintain,  that,  as  parties  are  frequently 
surprised  by  the  appearance  of  a  witness 
unknown  to  them,  or,  if  known,  entirely 
luiexpected,  without  such  power  they 
would  have  no  adequate  means  of  ascer- 
taining what  credit  is  due  to  his  testi- 
nion)' ;  that,  on  the  cross-examination  of 
spies,  informers,  and  accomplices,  this 
power  is  more  particularly  necessary  ;  and 
that,  if  a  witness  may  not  be  questioned 
as  to  his  character  at  the  moment  of  trial, 
the  projierty  and  even  the  life  of  a  party 
must  often  be  endangered.  Those  on  the' 
other  side,  who  maintain  that  a  witness  is 
not  compellable  to  answer  such  questions, 
argue  to  the  following  eflfbct.  They  say, 
the  obligation  to  give  evidence  arises  from 
the  oath,  which  everj''  witness  takes ;  that 
by  this  oath  he  binds  himself  only  to 
speak  touching  the  matters  in  issue ;  and 
that  such  particular  facts  as  these,  whether 
the  M'itness  has  been  in  jail  for  felony,  or; 
suffered  some  infamous  punishment,  ori 
the  like,  cannot  form  any  part  of  the  issue,) 
as  a^ipears  evident  £rom  this  consid.erution,! 
that  the  party  against  whom  the  witness | 
is  called  would  not  be  allowed  tQ.m:uiiii 
such  particular  facts  by  other  witiiesses.j 
They  argue,  further,  that  it  would  be  an 
extreme  grievance  to  a  witness,  to  be  com- 


CHAP.  III.]  EXAMINATION   OP  WITNESSES.  503 

of  opinions  may  be  somewhat  reconciled  by  a  distinction,  which 
has  been  very  properly  taken  between  cases,  where  the  testimony 
is  relevant  and  material  to  the  issue,  and  cases  where  the  question 
is  not  strictly  relevant,  but  is  collateral,  and  is  asked  only  under 
the  latitude  allowed  in  a  cross-examination.  In  the  former  case, 
there  seems  great  absurdity  in  excluding  the  testimony  of  a  Avit- 
ness,  merely  because  it  will  tend  to  degrade  himself,  when  others 
have  a  direct  interest  in  that  testimony,  and  it  is  essential  to  the 
establishment  of  their  rights  of  property,  of  liberty,  or  even  of 
life ;  or  to  the  course  of  public  justice.  Upon  such  a  rule,  one 
who  had  been  convicted  and  })unished  for  an  offence,  when  called 
as  a  witness  against  an  accomplice,  would  be  excused  from  testi- 
fying to  any  of  the  transactions,  in  which  he  had  participated  with 
the  accused,  and  thus  the  guilty  might  escape.  And,  accordingly, 
the  better  opinion  seems  to  be,  that  where  the  transaction,  to 
which  the  witness  is  interrogated,  forms  any  part  of  the  issue 
to  be  tried,  the  witness  will  be  o])liged  to  give  evidence,  however 
strongly  it  may  reflect  on  his  character.^ 

§  455.  But  where  the  question  is  not  material  to  the  issue,  but 
is  collateral  and  irrelevant,  being  asked  under  the  license  allowed 
in  cross-examination,  it  stands  on  another  ground.  In  general, 
as  we  have  already  seen,  the  rule  is,  that  upon  cross-examination 
to  try  the  credit  of  a  witness,  only  general  questions  can  Ije  put ; 
and  he  cannot  be  asked  as  to  any  collateral  and  independent  fact, 
merely  with  a  view  to  contradict  him  afterwards  by  calling  another 
witness.  The  danger  of  such  a  practice,  it  is  said,  is  obvious ; 
besides  the  inconvenience  of  trying  as  many  collateral  issues  as 
one  of  the  parties  might  choose  to  introduce,  and  which  the  other 

[pelleil  to  disclose  past  transactions  of  his  -plices  stand  in  a  peculiar  situation,  being 

life,  which  may  have  been  since  forgotten,  admitted  to  give  evidence  only  under  the 

and  to  expose  his  character  afresh  to  evil  implied  condition  of  making   a  full   and 

report,  when,  perluips,  by  his  subsequent  true  confession  of  the  whole  truth ;  but 

conduct,  he  may  have  recovered  the  good  even  accomplices  are  not  to  be  questioned, 

opinion  of  the  world ;  that,  if  a  witness  is  in   their  cross-examination,   as    to    other 

privileged    from    answering    a   question,  offences,   in   which  they   have  not  been 

though  relevant  to  the  matters  in  issue,  concerned  with  the  prisoner ;   that,  with 

because  it  may  tend  to  subject  him  to  a  respe^  to  other  witnesses,  the  best  course 

forfeiture  of  property,  with   much  more  to  be  adopted,  both  in  point  of  convenience 

reason  ought  he  to  be  excused  from  an-  and  justice,  is  to  allow  the  question  to  be 

swering  an  irrelevant  question,  to  tlie  dis-  asked,  at  the  same  time  allowing  the  wit- 

paragement  and  forfeiture  of  his  character;  ness  to  shelter  himself  under  his  privilege 

that,  in  the  case  of  accomplices,  in  which  of  refusing  to  answer."     Phil.  &  Am.  on 

this  compulsory  power  of  cross-examina-  .  Evid.  pp.  UlT,  'J18;  2  Phil.  Evid.  422. 

tion  is  thought  to  be   more   particularly  i  2  I'liil.  Evid.   421  ;    The   I'eople   i-. 

necessar}',  the  power  may  be  properly  con-  Mafher,  4  Wend.  2o0-2o4,  per  IMarcy,  J. ; 

ceded  to  a  certain  extent,  because  accom-  Peake's  Evid.  (by  Norris)  p.  'J2;  Cundell 


50-1  LAW   OF   EVIDENCE.  [PART   III. 

could  not  be  prepared  to  meet.^  Whenever,  therefore,  the  ques- 
tion put  to  the  witness  is  phiinly  of  this  character,  it  is  easy  to 
perceive  that  it  falls  under  this  rule,  and  should  be  excluded. 
But  the  difficulty  lies  in  determining,  with  precision,  the  mate- 
riality and  relevancy  of  the  question,  when  it  goes  to  the  character 
of  the  witness.  There  is  certainly  great  force  in  the  argimient, 
that  where  a  man's  liberty,  or  his  life,  depends  upon  the  testimony 
of  another,  it  is  of  infinite  importance,  that  those  who  are  to  decide 
upon  that  testimony  sliould  know,  to  the  greatest  extent,  how  far 
the  witness  is  to  be  trusted.  They  cannot  look  into  his  breast, 
to  see  what  passes  there ;  but  must  form  their  opinion  on  the 
collateral  indications  of  his  good  faith  and  sincerity.  Whatever, 
therefore,  may  materially  assist  them  in  this  inquiry,  is  most 
essential  to  the  investigation  of  truth  ;  and  it  cannot  but  be  mate- 
rial for  tl^e  jury  to  understand  the  character  of  the  witness,  whom 
they  arc  called  upon  to  believe ;  and  to  know  whether,  although 
he  has  not  been  convicted  of  any  crime,  he  has  not  in  some  meas- 
ure rendered  himself  less  credible  by  his  disgraceful  conduct.^ 
The  weight  of  this  argument  seems  to  have  been  felt  by  the  judge 
in  several  cases  in  which  questions,  tending  to  disgrace  the  wit- 
ness, have  been  permitted  in  cross-examination. 

§  456.  It  is,  however,  generally  conceded,  that  where  the  an- 
swer, which  the  witness  may  give,  will  not  directly  and  certainly 

\lioiv  his  infamy,  but  will  only  tend  to  disgrace  him,  he  may  be 
compelled  to  answer.  Such  is  the  rule  in  equity,  as  held  by  Lord 
Eldon;3  and  its  principle  applies  with  equal  force  at  common 
law ;  and,  accordingly,  it  has  been  recognized  in  the  common-law 
courts.*  In  questions  involving  a  criminal  oifencc,  the  rule,  as 
we  have  seen,^  is  different ;  the  witness  being  permitted  to  judge 

for  the  most  part  for  himself,  and  to  refuse  to  answer,  wherever 

it  would  tend  to  subject  him  to  a  criminal  punishment  or  forfeiture. 

But  here  the  court  must  see  for  itself,  that  the  answer  will  directly 

V.  Pratt,  1  M.  &  Malk.  108  ;.  Swift's  Evid.  mi.ffht  bo  finally  put  at  rest.      See  also 

80.     So  in   Scotland.    Alison's  Practice,  Loliman  v.  The  People,  1  Comst.  379. 
p.  528.  '^  1  St.irk.  Evid.  170. 

1  Spencely  v.  De  Willott,  7  East,  108,         »  I'arkhurst  v.  Lowten,  1  Meriv.  400 ; 

110.     Ld.    Ellenborougli  remarked,   that  2  Swanst.  l'J4,  21G,  s.  c. ;  Foss  v.  Ilaynes, 

he  had  ruled  this  point  again  ami  attain  at  1  Kedini;t.  81.     And  see  Story,  Eq.  Pi. 

the  sittings,  until  he  was  quite  tired  of  §§  5!S5,  ')'.)(]. 

the  agitation  of  the  question,  and  there-         *  The  People  v.  Mather,  4  "Wend.  232, 
fore  he  \vi?]ie<l  that  a  bill  of  exceptions  252,254;  The  State  v.  Patterson,  2  Ire- 
should  be  tendered  by  any  jiarty  dissatis-  dell,  K.  o4iJ. 
fied  with  his  judgnieiit,  that  the  question  »  Supra,  §  451. 


CHAP.  III.]  EXAMINATION   OF   WITNESSES.  505 

show  his  infamy,  before  it  will  excuse  him  from  testifying  to  the 
fact.^  Nor  docs  there  seem  to  be  any  good  reason  why  a  witness 
should  be  privileged  from  answering  a  question  touching'  his 
present  situation,  employment,  and  associates,  if  they  are  of  his 
own  choice ;  as,  for  example,  in  what  house  or  family  he  resides, 
what  is  his  ordinary  occupation,  and  whether  he  is  intimately 
acquainted  and  conversant  with  certain  persons,  and  the  like ; 
for,  however  these  may  disgrace  him,  his  position  is  one  of  his 
own  selection.^ 

[*  §  456a.  There  is  no  doubt  that  the  latitude  which  the  law 
allows  for  cross-examination  is  very  liable  to  abuse.  There  is 
probal)ly  no  other  mode  in  which  more  time  is  needlessly  consumed 
in  court,  or  by  which  more  unbecoming  scenes  are  liable  to  be  pro- 
duced there.  It  is  a  matter  resting  solely  in  the  discretion  of  the 
judge,  and  where  he  would  naturally  desire  to  err,  if  at  all,  by  too 
great  indulgence.  A  mere  impertinent  inquiry,  calculated  and 
intended  to  test  the  witness's  power  of  self-control,  and,  if  possible, 
to  throw  him  off  his  guard,  should  never  be  resorted  to  or  allowed, 
unless  there  has  been  something  very  marked  in  the  conduct  of  the 
witness  to  justify  it.  The  witness  should  be  told  that  he  is  not 
obliged  to  submit  to  insult,  or  to  answer  inquiries  merely  imperti- 
nent. Such  questions  generally  defeat  their  own  purpose,  if  that 
is  eliciting  as  favorable  a  statement  of  the  facts  as  possible  toward 
the  party.  The  surest  course  to  secure  that,  even  from  unwilling 
and  unfair  witnesses,  is  to  treat  them  with  kindness  and  courtesy. 
It  is  a  great  mistake,  which  some  of  the  profession  unfortunately 
sometimes  fall  into,  that  putting  impertinent  and  impudent  ques- 
tions, upon  cross-examination,  tends  either  to  the  exaltation  of 
their  own  credit,  or  can  possibly  subserve  the  interests  of  their 
clients.  There  can  be  nothing,  as  a  general  rule,  more  damaging 
to  both.3] 

§  457.  But,  on  the  other  hand,  where  the  question  involves  the 
fact  of  a  previous  conviction,  it  ought  not  to  be  asked ;  because 
there  is  higher  and  better  evidence  which  ought  to  be  offered.  If 
the  inquiry  is  confined,  in  terms,  to  the  fact  of  his  having  been 

1  Macbride  v.  Macbride,  4  Esp.  242,  per  ting  expressly,  that  lie  ilid  this  only  on  tlie 

Ld.  Alvauley ;  The  People  v.  Mather,  4  j;Toinul,  tliat  the  answer  wouhl  expose  her 

Wentl.  "254,  per  ^larcy,  J.  to  ])uni!«hnient.     Cundell  v.  I'ratt,  1  M.  & 

-  Tlius,    when   a   witness   was   asked,  Maik.  108. 
whetlier  she  was  not  cohabiting  with  a  »  [  *  Commonwealth  v.  Sacket,  22  Pick, 

particular  individual,  in  a  state  of  incest,  394;  Same  v.  Shaw,  4  Cush.  o'J3;  Smith 

Best,  C.  J.,  proliibited  the  question ;  sta-  v.  Cutter,  1  Gray,  108.] 
VOL.  I.                                                43 


^ 


50G  LAW    OF   EVIDENCE.  [PART  III. 

subjected  to  an  ignominious  2)unisJiment,  or  to  imprisonment  alone, 
it  is  made,  not  for  the  pnrpose  of  showing  that  he  was  an  innocent 
sufferer,  l)ut  that  he  was  guilty ;  and  the  only  competent  proof  of 
this  guilt  is  the  record  of  his  conviction.  Proof  of  the  same 
nature,  namely,  documentary  evidence,  may  also  he  had  of  the 
cause  of  his  commitment  to  prison,  whether  in  execution  of  a 
sentence,  or  on  a  preliminary  charge.^ 

/  §  458.  There  is  another  class  of  questions,  which  do  not  seem 
to  come  within  the  reasons  already  stated  in  favor  of  permitting 

I  this  extent  of  cross-examination  ;  namely,  questions,  the  answers 
to  which,  though  they  may  disgrace  the  witness  in  other  respects, 

>.  yet  ivill  not  affect  the  credit  due  to  his  testimony.     For  it  is  to  be 

\emembered,  that  the  object  of  indulging  parties  in  this  latitude 
of.  inquiry  is,  that  the  jury  may  understand  the  character  of  the 
witness,  whom  they  are  asked  to  believe,  in  order  that  his  evidence 
may  not  pass  for  more  than  it  is  worth.  Inquiries,  therefore, 
having  no  tendency  to  this  end,  are  clearly  impertinent.  Such  are 
the  questions  frequently  attempted  to  be  put  to  the  principal  female 
witness,  in  trials  for  seduction  jyer  quod  servitium  amisit,  and  on 
indictments  for  rape,  &c.,  whether  she  had  not  previously  been 
criminal  with  other  men,  or  with  some  particular  person,  which  al-e 
generally  suppressed.^     So,  on  an  indictment  of  a  female  pris(jner, 

1  Tl:e  People  v.  Ilerrick,  13  Johns.  84,  a  further  reason  for  not  interrogating  a 

per  Spencer,  J.  ;    Clement  v.  Brooks,  13  witness  respecting  his  conviction  and  pun- 

N.  Hamp.  R.  92.     In  Eex  v.   Lewis,   4  ishment  for  a   crime,   that  he  may  not 

Esp.  225,  the  prosecutor,  who  was  a  com-  understand    tlie    legal    character   of   the 

mon  informer,  was  asked  whether  he  had  crime  for  whicli  he  was  punished,  and  so 

not  been  in   the   house  of  correction    in  may  admit  himself  guilty  of  an   offence 

Sussex;    hut    Lord    EUenborough   inter-  wliich   he   never  connnitted.     In  ]\ex  v. 

posed,  and  suppressed  the  question  ;  part-  Edwards,  4  T.  II.  44U,  the  question  was 

ly  on  the  old  rule  of  rejecting  all  ques-  not  asked  of  a  witness,  hut  of  one  who 

tions,  the  object  of  which  was  to  degrade  ottered   himself   as   bail  for  another,   in- 

•^the  witness.;   but  chiefly,  because  of  the  dieted  of  grand  larceny.      [*The  party 

I    injury  to  the  administration  of  justice,  if  who  calls  the  witness  has  the  right  to  in- 

\    persons,  who   came   to   do   their  duty  to  sist,  that  if  the  adversary  would  impeach 

the   public,   might  be   subjected    to    im-  his  character  by  proving  him  guilty  of  an 

proper    investigation.     Inquiries   of   this  infamous  crime,  he  shall  do  it  by  i)roof  of 

nature  have  often  been  refused  on  the  old  the  record  of  such  conviction.     Newcomb 

ground  alone.     As  in  The  State  v.  Bailey,  r.  (iriswold,  24  N.Y.  App.  298.] 

Pennington's  R.  304  (2d  edit.) ;  Millmant'.  -  Do.dd  i'.  Norris,  3  Canipb.  519  ;  Rex 

Tucker,   2   Peake's   Cas.    222;    Stout   v.  v.  Hodgdon,  Kuss.  &  Ry.  211;    Vaughn 

Russell,  2  Yeates,  334.     A  witness  is  also  v.  Perrine,  Penningt.  R.  534.     But  where 

jtrivilL'ged  from  answering  respecting  the  the  prosecution  is  imder  a  bastardy  act, 

•    commission    of    an    oilence,    though    he  the  issue  being  upon  the  paternity  of  the 

luis  receiveil  a  pardon ;  "  for,"  said  North,  child,  this  inquiry   to  its   mother,  if  re- 

C.  J.,  "  if  he  hath  his  pardon,  it  doth  take  stricted  to  the  proper  time,  is  material, 

away  as  well  all  calunmy,  as  Uableness  to  and  she  will  be  held  to  answer.     Swift's 

punisiiment,  and  sets  him  right  against  all  Evid.  p.   81.     See  also  Macbride  r.  Mac- 

Vbjection."     Rex  v.  Reading,  7  IloweU's  bride,  4  Esp.  242;  Bate  v.  Hill,  1  C.  &  P. 

St.  Tr.  296,    It  may  also  be  observed,  as  100.    In  Rex  v.  Teal  et  al.  11  East,  307, 


CHAP.  III. J      ,  EXAMINATION   OP   WITNESSES.  507 

for  stealing  from  the  person,  in  a  house,  the  prosecutor  cannot  be 
asked,  whether  at  that  house  any  thing  improper  passed  Ijotween 
him  and  the  prisoner.^ 

§  459.  But  where  the  question  does  not  fall  tvithin  either  of  the 
classes  mentioned  in  the  three  preceding  sections,  and  goes  clearly 
to  the  credit  of  the  witness  for  veracity,  it  is  not  easy  ^o  perceive 
why  he  shoukl  be  privileged  from  answering,  notwithstanding  it 
may  disgrace  him.  The  examination  being  governed  and  kept 
within  bounds  by  the  discretion  of  the  judge,  all  inquiries  into 
transactions  of  a  remote  date  will  of  course  be  suppressed ;  for  j 
the  interests  of  justice  do  not  require  that  the  errors  of  any  man's 
life,  long  since  repented  of  and  forgiven  by  the  community,  should 
be  recalled  to  remembrance,  and  their  memory  be  perpetuated  in 
judicial  documents,  at  the  pleasure  of  any  future  litigant.  Th(y^ 
state  has  a  deep  interest  in  the  inducements  to  reformation,  held 
out  by  the  protecting  veil,  which  is  thus  cast  over  the  past  offences 
of  the  penitent.  But  where  the  inquiry  relates  to  transactions 
comparatively  recent,  bearing  directly  upon  the  present  charactei; 
and  moral  principles  of  the  witness,  and  therefore  essential  to  the 
due  estimation  of  his  testimony  by  the  jury,  learned  judges  have 
of  late  been  disposed  to  allow  it.^  Thus  it  has  been  lield,  that  a 
witness  called  by  one  party  may  be  asked  in  cross-examination,  j 
whether  he  had  not  attempted  to  dissuade  a  witness  for  the  other^ 
party  from  attending  the  trial.^  So  where  one  was  indicted  for 
larceny,  and  the  principal  witness  for.  the  prosecution  was  his 
servant  boy,  the  learned  judge  allowed  the  prisoner's  counsel  to 
ask  the  boy,  whether  he  not  been  charged  with  robbing  his  master, 
and  whether  he  had  not  afterwards  said  he  would  be  revenged  of 
him,  and  would  soon  fix  him  in  jail.*  Similar  inquiries  have  been 
permitted  in  other  cases. ^     The  great  question,  however,  whether 

311,  which  was  an  indictment  for  conspir-  mean,  that  in  modern  times,  the  courts 

ing  falsely  to  charge  one  with  being  the  have  permitted  questions  to  show,  from 

fafher  of  a  bastardehikl,  similar  inquiries  transactions  not  in  issue,  that  the  witness 

were  permitted  to  be  made  of  the  mother,  is  of  impeached  character,  and  therefore 

who  was  one  of  the  conspirators,  but  was  not  so  credible."    Parkhurst  v.  Lowten, 

admitted   a  witness  for  the  prosecution.  2  Swanst.  21b. 

[People  V.  Blakeley,  4  Parker,  C.  U.  17G.]  '^  Harris  v.  Tippett,  2  Campb.  637. 

Seey'os/,  vol.  2,  §  577.  *  liex  v.  Yewin,  citdl  2  C'auqib.  G38. 

1  Re.x  V.  Pitcher,  1  C.  &  P.  85.  '"  l\ex  v.  Watson,  2  Stark.  K.  11»J,  149; 

2  This  relaxation  of  the  old  rule  was  Kcx  v.  Teal  et  al.  11  East,  311 ;  CundcU 
recognized,  some  years  ago,  by  Lord  v.  I'ratt,  1  M.  &  INIalk.  108 ;  Rex  t-.  Bar- 
i;idon.  "It  used  to  be  said,"  he  observed,  nard,  1  C.  &  P.  85,  note  (a)  ;  Rex  '".  Gil- 
"  that  a  witness  coidd  not  be  called  on  to  roy,  lb.  ;  Frost  v.  Holloway,  cited  in  2 
discredit  himself;  but  there  seems  to  be  Phil.  Evid.  425. 

somethmg  like  a  departure  from  that ;  I 


508  LAW   OF   EVIDENCE.  ^       [rART   III. 

a  witness  may  not  be  bound  in  some  cases  to  answer  an  interroga- 
toiy  to  his  own  moral  degradation,  where,  though  it  is  coUatcral  to 
the  main  issue,  it  is  relevant  to  his  cliaracter  for  veracity,  has  not 
yet  been  brought  into  direct  and  solenni  judgment,  and  must 
tlicrofure  be  regarded  as  an  open  questicjn,  notwithstanding  the 
practice  of  eminent  judges  at  nisi  j^rius,  in  favor  of  the  inquiry, 
under  the  limitations  we  have  above  stated.^ 

§  4i!0.  Though  there  may  be  cases,  in  which  a  witness  is  not 
bound  to  answer  a  question  which  goes  directly  to  disgrace  him, 
yet  the  question  may  he  asked,  wherever  the  answer,  if  the  witness 
should  waive  his  privilege,  would  be  received  as  evidence.^  It  has 
been  said,  that  if  the  witness  declines  to  answer,  his  refusal  may 
well  be  urged  against  his  credit  with  the  jury.'^  But  in  several 
cases  this  inference  has  been  repudiated  by  the  court ;  for  it  is  the 
duty  of  the  court,  as  well  as  the  objects  of  the  rule,  to  protect  the 
witness  from  disgrace,  even  in  the  opinion  of  the  jury  and  other 
persons  present ;  and  there  would  be  an  end  of  this  protection,  if 
a  demurrer  to  the  question  were  to  be  taken  as  an  admission  of  the 
fact  inquired  into.^  [*  It  is  probably  safe  to  say,  that  counsel 
cannot  in  any  case  insist  upon  asking  a  question  which  the  witness 
is  not  obliged  to  answer ;  nor  can  any  just  inference  be  made 
against  a  witness  on  account  of  his  silence,  where  he  is  under  no 
i  obligation  to  speak.] 

§  461.  After  a  witness  has  been  examined  in  chief,  his  credit 
may  he  impeached  in  various  modes,  besides  that  of  exhibiting  the 
improbabilities  of  a  story  by  a  cross-examination.  (1.)  By  dls- 
2)roving  the  facts  stated  by  him,  by  the  testimony  of  other  wit- 
nesses. (2.)  By  general  evidence  affecting  his  credit  for  veracity. 
But  in  impeachiyig  the  credit  of  a  witness,  the  examination  must  be 
confined  to  his  general  reputation,  and  not  be  permitted  as  to 


1  See  1  Stark.  Evid.  1G7-172 ;  2  Tliil.  the   answer   cannot   be  contradicted.     In 

Evid.  423-428;  Peake's  Evid.  by  Norrls,  such  cases,  the  prudent  practitioner  will 

pp.  202-204.     In  Kespublica  v.   Gibbs,  3  seldom  put  a  question,  unless  it  be  one 

Yeates,  42'J,  where  the  old  rule  of  exclud-  which,  if  answered  either  wa.)',  will  bene- 

ing  the  inquiry  was  discusseil  on  f,fcneral  fit   his    client.       Such    was    the    question 

grounds,  and  apin-oved,  the  inquiry  was  put  by  the  prisoner's  counsel,  in  Kex  v. 

clearly  inadnnssilik'  on  another  account,  ritchcr,  supra,  §  458.     See  1  C.  &  P.  85, 

as  the  answer  would  go  to  a  forfeiture  of  note  (a). 

the  witness's  right  of  suffrage  and  of  citi-  ^  1  Stark.  Evid.  172;  Rose  v.  Blake- 

zenship.  more,  Ky.  &  M.  382,  per  Brougham,  arg. 

^  2    Piiil.    Evid.    423-428 ;    1    Stark.  *  Rose  v.  Blakeniore,  By.   &  M.  382, 

Evid.  172;  Southanl  r.  Kexford,  G  Cowen,  per  Abbott,  Ld.  Ch.  J.;    Bex  v.  Watson, 

251.     But  it  shoulil  be  remembered,  that  2  Stark.   B.  258,  per  Holroyd,  J. ;  Lloyd 

if  the  question  is  collateral  to  the  issue,  t'.  Passingiiam,  IG  Ves.  64;  suiira,  §  451. 


CHAP.  III.] 


EXAMINATION   OF   WITNESSES. 


509 


X 


pavticular  facts;  for  every  man  is  su]ij)oscd  to  be  capal^lc  of  suji- 
xporting-  the  one,  but  it  is  not  likely  that  he  should  be  prepared  to 
answer  the  other,  without  notice ;  and  unless  his  general  charac- 
ter and  behavior  be  in  issue,  he  has  no  notice.^  This  point  has 
been  much  discussed,  but  may  now  be  considered  at  rest.^  The 
regular  mode  of  examining  into  the  general  reputation  is  to  infjuire 
of  the  witness  whether  he  knows  the  general  reputation  of  the 
person  in  question  among  his  ncighljors ;  and  what  that  rei)Utation 
is.3  Li  the  English  courts  the  course  is  further  to  inquire  whether, 
from  such  knowledge,  the  witness  would  believe  that  person,  upon 
his  oath.^  In  the  American  courts  the  same  course  has  been  pur- 
sued ;  ^  but  its  propriety  has  of  late  been  questioned,  and  perhaps 
the  weight  of  authority  is  now  against  permitting  the  witness  to 
.  testify  as  to  his  own  opinion.^    In  answer  to  such  evidence,  the 


1  Bull.  N.  P.  296,  297.  Tlie  miscliief 
of  misinj^  oollatonil  issues  is  also  ad- 
verted to  as  one  of  the  reasons  of  this 
rule.  "  Look  ye,"  said  Holt,  Ld.  C.  J., 
"you  may  bring  witnesses  to  give  an 
account  of  the  general  tenor  of  the  wit- 
ness's couversatiun ;  but  you  do  not  think, 
sinx',  that  we  will  try,  at  this  time, 
whether  he  be  guiltj'  of  robbery."  Kex 
V.  Kookwood,  4  St.  Tr.  G81 ;  Vo  Howell's 
St.  Tr.  211,  s.  c. ;  1  Stai-k.  Evid.  182.  It 
is  competent,  however,  for  the  party 
against  whom  a  witness  has  been  called, 
to  show  that  he  has  been  bribed  to  give 
his  evidence.  Attor.-Geu.  v.  Hitchcock, 
11  Jur.  478. 

2  Layer's  case,  16  How.  St.  Tr.  246, 
28G ;  Swift's  Evid.  143. 

8  [In  Bates  v.  Barber,  4  Cush.  107, 
108,  it  was  iield,  that  the  preliminary 
question  as  to  the  knowledge  of  tlie  repu- 
tation need  not,  and  should  not,  be  put.] 

*  Phil.  &  Am.  on  Evid.  925 ;  Mawson 
V.  Ilartsink,  4  Esp.  104,  per  Ld.  Ellen- 
borough  ;  1  Stark.  Evid.  182 ;  Carlos  v. 
Brook,  10  Ves.  50. 

5  The  People  v.  Mather,  4  Wend.  257, 
258;  The  State  r.  Boswell,  2  Dev.  11. 
209,  211 ;  Anon.  1  Hill,  S.  Car.  K.  258 ; 
Ford  V.  Ford,  7  Humph.  92. 

6  Gass  V.  Stinson,  2  Sumn.  GIO,  per 
Story,  J. ;  Wood  r.  Jlann,  Id.  321 ;  Kiin- 
mel  r.  Kimniel,  3  S.  &  K.  336-338 ;  Wike 
V.  Lightner,  11  S.  &  R.  198;  Swift's  Evid. 
143 ;  Phillips  v.  Kingfield,  1  Appleton's 
R.  275.  In  this  last  ease  the  subject  was 
ably  examined  by  Shepley,  J.  who  ob- 
served :  "  The  opinions  of  a  witness  are 
not  legal  testimony,  except  in  special 
cases ;  such,  for  example,  as  experts  in 
some  profession  or  art,  those  of  the  wit- 


nesses to  a  will,  and,  in  our  practice,  opin- 
ions on  the  value  of  property-.  In  other 
cases,  the  witness  is  not  to  substitute  his 
opinion  for  that  of  the  jury  ;  nor  are  they 
to  rely  upon  any  such  opinion  mstead  of 
exercising  their  own  judgment,  taking 
into  consideration  the  whole  testiuK^ny. 
When  tliey  have  the  testimony  that  the 
reputation  of  a  witness  is  good  or  bad  for 
trutli,  connecting  it  with  his  manner  of 
testifying,  and  with  the  other  testimony 
in  the  case,  they  have  the  elements  from 
which  to  form  a  correct  conclusion, 
whether  any  and  what  credit  should  ba. 
given  to  his  testimon}-.  To  permit  the"' 
opinion  of  a  witness,  that  another  witness 
should  not  be  beheved,  to  be  received  and 
acted  upon  by  a  jury,  is  to  allow  the 
prejudices,  passions,  and  feelings  of  that 
witness  to  form,  in  part,  at  least,  the  ele- 
ments of  their  judgment.  To  authorize^-'' 
the  question  to  be  put,  whether  the  wit- 
ness would  believe  another  witness  on 
oath,  although  sustained  by  no  inconsid- 
erable weight  of  authority,  is  to  depart 
from  sound  principles  and  establislied  rules 
of  law,  respecting  the  kind  of  testimony  to 
be  admitted  for  the  consideration  of  a  jury, 
and  their  duties  in  deciding  upon  it.  It 
moreover  would  permit  the  introduction 
and  indulgence  in  courts  of  justice  of  per- 
sonal and  i)arty  hostilities,  and  of  every 
unworthy  motive  by  wliich  num  can  be 
actuated",  to  form  the  basis  of  an  opinion 
to  be  expressed  to  a  jury  to  influence  their 
decision."  1  Applet.  K.  379.  But  ijaare, 
whether  a  witness  to  impeach  reputation 
may  not  be  asked,  in  cruss-txainlmitivn,  if 
he  would  not  believe  the  principal  witness 
on  oath. 


43* 


510 


LAW   OF   EVIDENCE. 


[part  III. 


other  party  may  cross-examine  those  witnesses  as  to  their  means 
of  knowledge,  and  the  grounds  of  their  opinion ;  or  may  attack 
their  general  character,  and  by  fresh  evidence  support  the  charac- 
ter of  his  own  witness.^  The  inquiry  must  be  made  as  to  his 
general  reputation,  where  he  is  best  known.  It  is  not  enough  that 
the  impeaching  witness  professes  merely  to  state  what  he  has 
heard  "  others  say  ; "  for  those  others  may  be  but  few.  He  must 
be  able  to  state  what  is  (/eneraUi/  said  of  the  person,  byjthose 
among  whom  he  dwells^  or  with  whom  he  is  chiefly  conversant; 
for  it  is  this  only  that  constitutes  his  general  reputation  or  charac- 
ter.2  And,  ordinarily,  the  witness  ought  himself  to  come  from 
the  neighborhood  of  the  person  whose  character  is  in  question. 
If  he  is  a  stranger,  sent  thither  by  the  adverse  party  to  learn  his 
character,  he  will  not  be  allowed  to  testify  as  to  the  result  of  his 
inquiries  ;  but  otherwise,  the  court  will  not  undertake  to  determine, 
by  a  preliminary  inquiry,  whether  the  impeaching  witness  has 
sufficient  knowledge  of  the  fact  to  enable  him  to  testify  ;  but  will 
leave  the  value  of  his  testimony  to  be  determined  by  the  iury.^ 


1  2  Phil.  Evkl.  432 ;  Mawson  v.  Hart- 
sink,  4  E.sp.  104,  iier  Ld.  EUenborough  ;  1 
Stark.  Evid.  182.  It  is  not  usual  to  cross- 
examine  witnesses  to  character,  unless 
there  is  some  definite  charge  upon  which 
to  cross-examine  them.  Kex  v.  Ilodgkiss, 
7  C.  &  P.  2U8.  Nor  can  such  witnesses  be 
contradicted  as  to  collateral  fiicts.     Lee's 

i^'case,  2  Lewin,  Cr.  Cas.  154.  [The  court 
may  exercise  its  discretion  in  limiting  the 
number  of  impeaching  witnesses,  and  like- 
wise that  of  the  supporting  witnesses  ;  and 
the  proper  exercise  of  such  discretion  is 

'\no  ground  of  error.  Bunnell  v.  Butler,  23 
Conn.  65.  In  the  Supreme  Judicial  Court 
of  Massachusetts,  the  court  at  nisi  prius 
has  in  some  cases  limited  the  number  to 
Jive  or  six  on  a  side,  giving  the  i)arties  no- 
tice beforehand  of  such  intended  limita- 
tion. In  Bunnell  v.  Butler,  ubi  sti/nri,  the 
number  was  limited  to  six  on  eaeli  side, 
the  court  previously  notityiug  the  parties 
of  the  intended  limitation.] 

-  Boynton  v.  Kellogg,  3  Mass.  129,  per 
Parsons,  C.  J. ;  Wike  v.  Lightnor,  11  S.  & 
R.  108,  199,  200 ;  Kimmel  v.  Kinnnel,  8  S. 
&  II.  337,  338 ;  PhiUips  v.  Kingfield,  1  Ap- 
plet. II.  375.  The  imi)eachiug  witness 
may  also  be  asked  to  name  the  jiersons 
whom  he  has  heard  speak  against  the 
character  of  the  witness  impeached.  Bates 
V.  Barber,  4  Cush.  107.  [Or  if  the  repu- 
tation of  the  witness  im[)eached  relates 
wholly  or  in  part  to  his  want  of  punctuali- 


ty in  paying  his  debts.  Pierce  v.  Newton, 
13  Cray,  528.]  [*  But  such  evidence 
should  connnonly  be  restricted  to  the 
character  of  the  witness  for  truth.  Shaw 
V.  Emery,  42  Me.  II.  59 ;  Craig  v.  State, 
5  Ohio,  N.  s.  G05;  State  ;;.  Sater,  8  Clarke, 
420.  But  in  some  of  the  states  such  in- 
quiries take  a  wider  range.  Eason  v.  Chap- 
man, 21  III.  33 ;  GilUam  v.  State,  1  Head, 
38.] 

**  Douglass  V.  Tousey,  2  Wend.  352; 
Bates  V.  Barber,  4  Cush.  107 ;  Sleei)er  v. 
Van  Middles  worth,  4  Denio,  431.  Wheth- 
er this  inquiry  into  the  general  reputation 
or  character  of  the  witness  shoidd  be  re- 
stricted to  his  reputation  for  truth  and 
veracity,  or  may  be  made  in  general  terms, 
involving  his  entire  moral  character  and 
estimation  in  society,  is  a  point  upon  which 
the  American  practice  is  not  unilbrm.  All 
are  agreed,  that  the  true  and  primary  in- 
quiry is  into  his  general  character  for  truth 
and  veracity,  and  to  this  point,  in  the 
Northern  states,  it  is  still  confined.  But 
|in  several  of  the  other  states  'greater  lati- 
tude is  allowed.  In  Son/h  Carol iiui,  the 
true  mode  is  said  to  be,  first,  to  ask  what 
is  his  general  character,  and  if  this  is 
said  to  be  bad,  then,  to  inquire  whether 
the  witness  would  believe  him  on  oath; 
leaving  the  party  who  adduced  him  to 
inquire  wliether,  notwithstanding  his  bad 
character  in  other  respects,  he  has  not  i^re- 
served  his  character  for  truth.    Anon.  1 


CHAP.  III.] 


EXAMINATION   OF   WITNESSES. 


511 


I§  4G2.  (3.)  The  credit  of  a  witness  may  also  be  impeached  by 
proof,  that  he  has  made  istatemenU  out  of  court,  contrary  to  ivliat 
he  has  testified  at  the  trial.  But  it  is  only  in  such  matters  as  are 
relevant  to  the  issue,  that  the  witness  can  ])0  contradicted.  And 
before  this  can  be  done,  it  is  generally  held  necessary,  in  the  case 
of  verbal  statements,  first  to  ask  him  as  to  the  time,  place,  and 
person  involved  in  the  supposed  contradiction.  It  is  not  enough 
to  ask  him  the  general  question,  whether  he  has  ever  said  so  and 
so,  nor  whether  he  has  always  told  the  same  story ;  because  it  may 
frequently  happen,  that,  u])on  the  general  question,  he  may  not 
remember  whether  he  has  so  said ;  whereas,  when  his  attention  is 
challenged  to  particular  circumstances  and  occasions,  he  may 
recollect  and  explain  what  he  has  formerly  said.^    This  course  of 


Hill,  S.  Car.  R.  251,  258,  259.  In  Ken- 
tuck;/,  the  same  jyoneral  range  of  inquiry 
is  pennittcil ;  and  is  thus  defended  by  one 
of  tlie  learned  judges :  "  Every  person 
conversant  with  human  natiu'e  must  be 
sensible  of  the  kindred  nature  of  the  vices 
to  jvhich  it  is  addicted.  So  true  is  this, 
that,  to  ascertain  the  existence  of  one  vice, 
of  a  particular  character,  is  frequently  to 
prove  the  existence  of  more,  at  tiie  same 
time,  in  the  same  individual.  Add  to  tliis, 
that  persons  of  infamous  character  may, 
and  do  fi-equently  e.xist,  who  have  formed 
no  character  as  to  their  lack  of  truth  ;  and 
society  may  have  never  had  the  opportu- 
nity of  ascertaining  that  they  are  false  in 
their  words  or  oaths.  At  the  same  time, 
they  may  be  so  notoriously  guilty  of  act- 
ing falsehood,  in  frauds,  forgeries,  and 
other  crimes,  as  would  leave  no  doubt  of 
their  being  capable  of  speaking  and  swear- 
ing it,  especially  as  they  may  frequently 
depose  falsehood  with  greater  security 
against  detection,  tlian  practice  those  other 
vices.  In  such  cases,  and  with  such  char- 
acters, ought  the  jury  to  be  precluded 
from  drawing  inferences  unfavorable  to 
their  truth  as  witnesses,  by  excluding 
their  general  turi)itude  ?  By  the  charac- 
ter of  every  individual,  that  is,  by  the 
estimation  in  which  he  is  held  in  the  so- 
ciety or  neighborhood  where  he  is  conver- 
sant, his  word  and  his  oath  are  estimated. 
If  that  is  free  from  imputation,  his  testi- 
mony weighs  well.  If  it  is  sullied,  in  the 
same  proportion  his  word  will  be  doubted. 
We  conceive  it  perfectly  safe,  and  most 
conducive  to  the  purposes  of  justice,  to 
trust  the  jury  with  a  full  knowledge  of 
the  standing  of  a  witness,  into  whose  char- 
acter an  inquiry  is  made.  It  will  not 
thence  follow,  that  from  minor  vices  they 


will  draw  the  conclusion,  in  every  in- 
stance, that  his  oath  must  be  discredited, 
but  only  be  put  on  their  guard  to  scruti- 
nize his  statements  more  strictly ;  while 
in  cases  of  vile  reputation,  in  other  res- 
pects, they  would  be  warranted  in  disbe- 
lieving him,  though  he  had  never  been 
called  so  often  to  the  book  as  to  fix  upon 
him  the  reputation  of  a  liar,  when  on 
oath."  Hume  r.  Scott,  3  A.  K.  Marsh, 
201,  2G2,  per  Mills,  J.  This  decision  has 
been  cited  and  approved  in  North  Carolina, 
where  a  similar  course  prevails.  The 
State  V.  Boswell,  2  Dev.  Law  Rep.  209, 
210.  See  also  The  People  v.  Mather,  4 
Wend.  257,  258,  per  Marcy,  J.  See  also 
o  Am.  Law  Jour.  154-162,  n.  s.,  where  all 
the  cases  on  this  point  are  collected  and 
reviewed.  Whether  evidence  of  common 
prostitution  is  admissible  to  impeach  a 
female  witness,  qiutre.  See  Conmion- 
wealth  V.  Muri>hy,  14  Mass.  387  ;  2  Stark. 
Evid.  3G9,  note  ("l),  by  Metcalf,  that  it  is 
admissible.  Spears  r.  Forrest,  15  Verm. 
435,  tiiat  it  is  not.  [And  Connnonwealth 
V.  Churchill,  11  Met.  538,  that  it  is  not, 
thus  overruling  Commonwealth  v.  Mur- 
phy.    Teese  v.  Huntington,  23  How.  2.] 

1  Angus  r.  Smith,  i  M.  &  Maik.  473, 
per  Tindal,  C.  J.;  Crowley  v.  Rage,  7  C. 
&  P.  789,  per  Parke,  B. ;  Regina  v.  Shel- 
lard,  9  C.  &  P.  277 ;  Regina  \\  Holden,  8 
C.  &  P.  G06 ;  Palmer  v.  Haight,  2  Barb. 
s.c.  R.  210.  In  the  Queen's  case,  this  sub- 
ject was  very  much  discussed,  and  the 
unanimous  opinion  of  the  learned  judges 
was  deliveretl  by  Abbott,  C.  J.,  in  these 
terms  :  "  The  legitimate  object  of  the  pro- 
posed proof  is  to  discredit  the  witness. 
Now,  tlie  usual  practice  of  the  courts  be- 
low, anil  a  practice  to  which  we  are  not 
aware  of  any  exception,  is  this :  if  it  be 


512 


LAW   OF   EVIDENCE. 


[part   III. 


proceeding  is  considered  indispensable,  from  a  sense  of  justice  to' 
the  witness ;  for,  as  the  direct  tendency  of  the  evidence  is  to  im- 


intcnilcil  to  bring  the  credit  of  a  witness 
into  question  by  proof  of  any  thing  tiiat  lie 
nia^-  liavc  said  or  dcchired,  toucliing  the 
cause,  the  witness  is  first  asked,  upon 
cross-examination,  wliether  or  no  lie  has 
said  or  declared  that  which  is  intended  to 
be  proved.  If  the  witness  admits  the 
woi'ds  or  declarations  imputed  to  him,  the 
proof  on  the  other  side  becomes  unneces- 
sary ;  and  the  witness  has  an  opportunity 
of  giving  such  reason,  explanation,  or  ex- 
culpation of  his  conduct,  if  any  there  may 
be,  as  the  particular  circumstances  of  the 
transaction  may  happen  to  furnish ;  and 
thus  the  whole  matter  is  brought  before 
the  court  at  once,  which,  in  om-  opinion, 
is  tlie  most  convenient  course.  If  the 
witness  denies  the  words  or  declarations 
imputed  to  him,  the  adverse  party  has  an 
opportunity  afterwards  of  contending  that 
tlie  matter  of  the  speech  or  declaration  is 
such,  that  he  is  not  to  be  bound  by  the 
answer  of  the  witness,  but  may  contradict 
and  falsify  it ;  and,  if  it  be  found  to  be 
such,  his  proof  in   contradiction  will   be 

/^received  at  the  proper  season.  If  the  wit- 
ness  declines  to  give  any  answer  to  the 
question  proposed  to  him,  by  reason  of 
the  tendency  thereof  to  criminate  himself, 
and  the  court  is  of  opinion  that  he  cannot 
be  compelled  to  answer,  the  adverse  party 
has,  in  this  instance,  also,  his  subsequent 
opportunity  of  tendering  his  proof  of  the 
matter,  wliich  is  received,   if  by  law  it 

^>GUght  to  be  received.  But  the  possibility 
that  the  witness  may  decline  to  answer 
the  question  affords  no  sufficient  reason 
for  not  giving  him  the  opportunity  of  an- 
swering, and  of  oflering  such  explanatory 
or  exculpatory  matter  as  I  have  before 
alluded  to ;  and  it  is,  in  our  opinion,  of 
great  importance  that  this  opportunity 
should  be  thus  afforded,  not  only  for  the 
purpose  already  mentioned,  but  because, 
if  not  given  in  the  first  instance,  it  may 
be  wholly  lost ;  for  a  witness,  who  has  been 
examined,  and  has  no  reason  to  suppose 
that  his  further  attendance  is  requisite, 
often  departs  the  court,  and  may  not  be 
found  or  brought  back  until  the  trial  be  at 
an  end.  So  that,  if  evidence  of  this  sort 
could  be  adduced  on  the  sudden  and  by 
surprise,  without  any  previous  intimation 
to  the  witness  or  to  the  party  producing 
him,  great  injustice  might  be  done ;  anrf, 
in  our  opinion,  not  unfrequently,  wouhl 
be  done  both  to  the  witness  and  to  the 
party ;  and  tliis  not  only  in  the  case  of  a 
witness  called  by  a  plaintiff  or  prosecutor, 
but  equally  so  in  the  case  of  a  witness 


called  by  a  defendant;  and  one  of  the 
great  objects  of  the  course  of  proceeding, 
estiiblished  in  our  courts,  is  the  preven- 
tion of  surprise,  as  far  as  practicable,  upon 
any  jierson  wlio  may  appear  therein." 
The  Queen's  case,  2  Brod.  &  Bing.  313, 
814.  In  the  United  States,  the  same  course 
is  understood  to  be  generally  adopted; 
[Conrad  v.  Griffey,  1(5  How.  U.  S.  38; 
Sprague  v.  Cadwcll,  1*2  Barb.  516  ;  Unis  v. 
Charlton's  Adm'r,  12  Gratt.  484 ;  Wright 
V.  Hicks,  15  Geo.  loO ;  Carlisle  v.  Hunley, 

16  Ala.  622;  Powell  v.  State,  lU  lb.  577; 
Drennen  v.  Lindsey,  15  Ark.  359 ;  Nelson 
V.  State,  2  Swan,  237  ;  Smith  v.  People,  2 
Mich.  415;]  except  in  Maine;  Ware  v. 
Ware,  8  Greenl.  42 ;  and  perhaps  in  Mas- 
sachusetts ;  Tucker  v.  Welsh,  17  jNIass.  160. 
But  see  Brown  v.  Bellows,  4  Pick.  188. 
[In  Massachusetts  the  rule  is  now  settled, 
that  the  witness  need  not  be  first  asked 
whether  he  has  ever  testified  differently. 
Gould  V.  Norfolk  Lead  Co.  U  Cusli.  338; 
Commonwealth  v.  Hawkins,  3  Gray,  463, 
464.  In  the  latter  case,  "  Bolles,  for  the 
defendant,  offered  the  depositions,  taken 
before  the  coroner,  at  the  inquest  on  the 
body  of  Leet,  for  tlie  purpose  of  contra- 
dicting the  evidence  given  by  the  same 
Avitnesses  at  this  trial,  when  called  by  the 
commonwealth.  The  attorney -general  ob- 
jected, on  the  ground  that  the  witnesses 
sought  to  be  impeached  had  not  been 
asked,  on  their  examination,  whether  they 
had  not  previously  made  difierent  state- 
ments, nor  had  their  attention  in  any  way 
been  called  to  their  depositions  before  the 
coroner.  But  the  court  were  of  opinion 
that,  for  the  purpose  of  impeaching  the 
witnesses,  such  parts  of  their  depositions 
were  admissible  as  were  contradictory  of 
the  evidence  given  by  them  at  the  trial ; 
that  the  uniform  practice  in  this  common- 
wealth, ditlcring  m  this  respect  from  that 
of  England,  and  some  of  the  other  states, 
had  been,  as  stated  in  Tucker  v.  Welsh, 

17  Mass.  160,  to  allow  the  introduction  of 
evidence  that  a  witness  had  previously 
made  different  statements,  without  first 
calling  his  attention  to  such  statements ; 
that,  after  such  parts  had  been  read,  the 
commonwealth  would  have  the  right  to 
require  the  whole  of  the  former  statement 
to  be  read,  and  might  recall  the  witness 
afterwards  to  explain  the  alleged  discrep- 
ancy. Bolles  then  proposed  to  point  out 
to  the  jury  that  these  witnesses  had  omit- 
ted, in  their  testimony  before  the  coroner, 
material  facts  to  Avhich  they  had  now  tes- 
tified, and  which,  he  argued  were  so  im- 


CHAP.  III.] 


exam;ination  of  witnesses. 


513 


pcacli  his  veracity,  common  justice  rcquii-os  that,  ^>y  first  calling  his 
attention  to  the  subject,  ho  should  have  an  ojiportnn'ity  to  recollect 
the  facts,  and,  if  necessary,  to  correct  the  statement  already  given, 
as  well  as  by  a  re-examination  to  explain  tlie  nature,  circumstances, 
meaning,  and  design  of  what  he  is  [jnnetl  elsewliere  to  have  said.^ 


port.aiit  that  tlioy  could  not  have  been 
oinittc'il  tlu'ii,  ami  reiiU'tubercMl  now,  con- 
sistently with  the  ordinary  workings  of  a 
good  nieniory  and  a  good  conscience. 
But  the  court  ruled  tliat  those  parts  only 
of  the  testimony  before  the  coroner  could 
be  read,  for  the  purpose  of  inijieaching  the 
character  of  the  witness,  which  went  to 
show  a  discrepancy  or  contradiction,  as 
by  showing  that  the  witness  hail  given 
ditlerent  accounts  at  different  times,  by 
alleging  a  fact  at  one  time  which  he  de- 
nied at  another,  or  by  stating  it  in  two 
ways  inconsistent  witli  each  other;  and 
that  the  mere  omission  to  state  a  fact,  or 
stating  it  less  fully  before  tlie  coroner,  was 
not  a  subject  for  connuent  to  the  jury,  un- 
less the  attention  of  the  witness  was  i)ar- 
ticularly  called  to  it  at  the  inquest ;  "  and 
in  Niw  Ilatiiiifi/iire,  Titus  i\  Ash,  -4  P'oster, 
ol'J;  and  in  Connecticut,  Hedge  i-.  Clapp, 
l-l  Conn.  tJ-22,  in  which  Tucker  r.  Welsh, 
17  Mass.  160,  is  cited  and  approved.  liobiii- 
son  V.  Hutchinson,  31  Vt.  4-i'5.]  [*The  rule 
requiring  the  witness  first  to  be  inquired 
of  as  to  his  having  made  such  contradic- 
tory statements  seems  not  to  obtain  with 
entire  aiijirobation  in  some  of  the  states. 
Cook  V.  Brown,  S4  N.  II.  4G0  ;  Howland  v. 
Conway,  1  Al)bott,  Adm.  281.  But  in 
others  it  is  rigitUy  enforced.  Jarboe  v.  Kep- 
ler, 8  Ind.  ol4 ;  Galena,  &c.,  R.  R.  Co.  v. 
Pay,  16  111.  rw8;  State  v.  Davis,  21)  Mo. 
aui ;  Ketchingman  v.  State,  6  Wis.  426. 
I  But  in  order  to  lay  the  foundation  for  in- 
I quiring  of  the  witness  as  to  what  he  may 
[have  said  out  of  court,  he  must  first  be 
examined  as  to  the  facts  upon  that  ])oiut, 
[in  order  to  make  the  in<juiry  nwiterial. 
Combs  V.  Winchester,  o'J  J<.il.  Yi;  Bearss 
r.  Copley,  10  N.Y.  A])p.  '.»;!.]  The  utility 
of  this  practice,  and  of  confronting  the 
two  opposing  witnesses,  is  illustrated  by 
a  case  mentioned  by  Mr.  Justice  Cowen, 
in  his  notes  to  riullips  on  Evidence, 
vol.  2,  p.  774  (note  b'l'.i  to  I'liil.  Evid.  o08) ; 
"  in  which  a  highly  respectable  witness, 
sought  to  be  impeached  through  an  out- 
of-door  conversation  by  another  witness, 
who  seemed  very  willing  to  bring  him 
into  a  contradiction,  upon  both  being 
placed  on  tlic  stand,  furnished  such  a  dis- 
tinction to  the  latter  as  corrected  his  mem- 
ory, and  led  him,  in  half  a  niiiuite,  to 
acknowledge  that  he  was  wrong.      The 


difference  lay  in  only  one  word.  The 
first  witness  had  now  sworn,  that  he  did 
not  rel}'  on  a  certain  firm  as  being  in  good 
credit  ;  for  he  was  not  well  informed  on 
the  subject.  Tlie  former  words  imputed 
to  hinr  were  a  plain  admission  that  he  was 
fully  informeil,  and  did  rely  on  their  credit. 
It  turned  out  that,  in  his  tiwnier  conversa- 
tion, he  spoke  of  a  partnershi]).  from  which 
one  name  was  soon  afterward  withdrawn, 
leaving  him  now  to  speak  of  the  latter 
firm,  thus  weakened  by  the  withdrawal. 
In  regard  to  the  credit  of  the  first  firm,  he 
had,  in  truth,  been  fully  informed  liy  let- 
ters. With  resjiect  to  the  last,  he  had  no 
information.  The  sound  in  the  titles  of 
the  two  firms  was  so  nearly  alike,  that  the 
ear  would  easily  confound  them  ;  and,  had 
it  not  been  for  the  colUxiuiiun  thus  brought 
on,  an  a])parent  contrailiction  would  doubt- 
less have  been  kept  on  foot,  for  various 
jiurposcs,  through  a  long  trial.  It  involved 
an  incjuiry  into  a  credit  which  had  been 
given  to  another,  on  the  fraudulent  rei)re- 
scntations  of  the  defendant."  Mr.  Starkie, 
for  a  ditterent  purpose,  mentions  another 
case,  of  similar  character,  where  the  judge 
understood  the  witness  to  testily  that  the 
prisoner,  who  was  charged  with  forgery, 
said,  "  I  mil  the  drawer,  acceptor,  and 
indorser  of  the  bill  ;  "  whereas  the 
words  were,  "  I  hiow  the  drawer,  ac- 
ceptor, and  indorser  of  the  bill."  1 
Stark.  Evid.  484. 

1  Regina  v.  St.  George,  9  C.  &  P.  483, 
481);  Carpenter  v.  Wahl,  II  Ad.  &  El. 
803.  On  this  subject,  the  following  ob- 
servations of  Lord  Langdale  deserve  great 
cousideiation.  "  I  do  not  think,"  said  he, 
"  that  the  veracity  or  even  the  aci'uracy 
of  an  ignorant  and  illiterate  ])erson  is  to 
be  conclusively  tested  by  comparing  an 
affidavit  wliich  he  has  made,  with  his  tes- 
timony given  upon  an  oral  examination 
in  open  coiu-t.  We  Iiave  too  nuich  expe- 
rience of  the  great  infirmity  of  affidavit 
evidence.  When  the  witness  is  illiterate 
and  ignorant,  the  language  presentetl  to 
the  ciuu't  is  i»)t  his  ;  it  is,  aiul  nuist  be, 
the  language  of  the  pers(m  who  jjrepares 
the  affidavit ;  and  it  nuiy  be,  and  too  often 
is,  the  expression  of  that  person's  erro- 
necuis  inference  as  to  the  meaning  of  the 
language  used  by  the  witness  himself; 
and  however  carefully  the  affidavit  may 


514 


LAW   OF   EVIDENCE. 


[part  III. 


And  this  rule  is  extended,  not  only  to  contradictory  statements  by 
the  Avitness,  but  to  other  declarations,  and  to  acts  done  by  him, 
through  the  medium  of  verbal  communications  or  correspondence, 
which  arc  offered  \tith  the  view  either  to  contradict  his  testimony 
in  chief,  or  to  prove  him  a  corrupt  witness  himself,  or  to  have  been 
guilty  of  attempting  to  corrupt  others. ^ 

§  463.  A  similar  principle  prevails  in  cross-examining  a  witness 
as  to  the  contents  of  a  letter,  or  other  paper  written  by  him.  The 
counsel  will  not  be  permitted  to  represent,  in  the  statement  of  a 
question,  the  contents  of  a  letter,  and  to  ask  the  witness  whether 
he  wrote  a  letter  to  any  person  with  such  contents,  or  contents  to 


be  read  over  to  the  witness,  he  may  not 
understand   wliat  is  said  in  language  so 
ditterent  from  tliat  wliich  lie  is  accustomed 
to  use.    Having  expressed  liis  meaning  in 
his  own  language,  and  finding  it  translated 
by  a  person  on  whom  he  relies,  into  lan- 
guage not  his  own,  and  which  he  does  not 
perfectly  understand,  he  is  too  apt  to  ac- 
quiesce ;  and  testimony  not  intended  by 
him  is  brought  before  the  court   as  his. 
Again,  evidence  taken  on  afiidavit,  being 
taken  ex  parte,  is  ahnost   always  incom- 
plete,  and    often    inaccurate,   sometimes 
from   partial  suggestions,  and  sometimes 
from  the  want  of  suggestions  and  inqui- 
ries, without  the  aid  of  which  the  witness 
may  be  unable  to  recall  the  connected  col- 
lateral  circumstances,   necessary  for   the 
correction  of  the  first  suggestions  of  his 
memory,  and  for  his  accurate  recollection 
of  all  that  belongs  to  the   subject.     For 
these  and  other  reasons,  I  do  not  think 
that  discrepancies  between   the   aflSdavit 
and  the  oral  testimony  of  a  witness  are 
conclusive   against   the   testimony  of  the 
witness.     It  is  furtlicr  to  he  ol)served,  that 
witnesses,  and   particularly  ignorant  and 
illiterate  witnesses,  must  always  be  liable 
to  give  imperfect  or  erroneous  evidence, 
even  when  orally  exammed  in  open  court. 
The  novelty  of  the  situatu)n,  the  agitation 
and  hurry  which  accompanies  it,  the  Ca- 
jolery or  intimidation  to  which  the   wit- 
nesses   may    be    subjected,    the   want    of 
questions  calculated  to  excite  those  recol- 
lections, which  might  clear  up  every  diffi- 
culty, and   the   confusion   occasioned  by 
cross-examination,  as  it  is  too  often  con- 
ducted, may  give  rise  to  imjrortant  errors 
and  omissions  ;  and  the  truth  is  to  be  elicit- 
ed, not  by  giving  e<iual  weight  to  every 
word  the  witness  may  have  uttered,  but 
by  considering  all  the  words  with  refer- 
ence to  the  particular  occasion  of  saying 
them,  and  to  the  personal  demeanor  and 


deportment  of  the  witness  during  the 
examination.  All  the  discrepancies  which 
occur,  and  all  that  the  witness  says  in 
respect  of  them,  are  to  be  carefully  at- 
tended to,  and  the  result,  according  to 
the  special  circumstances  of  each  case, 
may  be,  either  that  the  testimony  must  be 
altogether  rejected,  on  the  ground  that 
the  witness  has  said  that  which  is  untrue, 
either  wilfully  or  imder  self-delusion,  so 
strong  as  to  invalidate  all  that  he  has  said; 
or  else  the  result  must  be,  that  the  testi- 
mony must,  as  to  the  main  purpose,  be 
admitted,  notwithstanding  discrepancies 
which  may  have  arisen  from  innocent 
mistake,  extending  to  collateral  matters, 
but  perhaps  not  affecting  the  main  ques- 
tion in  any  important  degree."  8ee  John- 
son V.  Todd,  5  Beav.  GUO-602.  See  Mc- 
Kinney  v.  Neil,  1  McLean,  540 ;  Hazard 
V.  N.Y.&  Providence  R.R.  2  R.  I.  R.  62. 

1  See  2  Brod.  &  Bing.  800,  313;  1 
Mood.  &  Malk.  473.  If  the  witness  does 
not  recollect  the  conversation  imputed  to 
him,  it  may  be  proved  by  another  witness, 
provided  it  is  relevant  to  the  matter  in 
issue.  Crowley  v.  Page,  7  C.  &  P.  789, 
per  Parke,  B.  The  contrary  seems  to 
have  been  ruled  some  years  betbre,  in 
Pain  V.  Beeston,  1  M.  &  Rob.  20,  per  Tin- 
dal,  C.  J.  But  if  he  is  asked,  upon  cross- 
examination,  if  he  will  swear  that  he  has 
not  said  so  antl  so,  and  be  answers  that 
he  will  not  swear  that  he  has  not,  the 
party  cannot  be  called  to  contradict  him. 
Long  V.  Hitchcock,  9  C.  &  P.  (J19;  supra, 
§  449.  If  he  denies  having  made  the  con- 
tradictory statements  in(juired  of,  .and  a 
witness  is  called  to  prove  that  he  did,  the 
I)arti(ndar  words  mtist  not  be  put,  but 
the  witness  must  be  required  to  relate 
what  passed.  Ilallett  v.  Cousens,  2  M.  & 
Rob.  238.  [*This  contradiction  maybe 
made  out  by  a  series  of  documents.  Jack- 
son 0.  Thomason,  8  Jur.  n.  s.  134.] 


CHAP,  til]  examination    OF   WITNESSES.  515 

the  like  effect;  "without  having  first  shown  to  the  witness  the 
letter,  and  having  asked  him  whether  he  wrote  that  letter,  and  his 
admitting  tliat  he  wrote  it.  For  the  coiiteuts  of  evciry  written 
paper,  acgordi.ng  to  the, ordinary  and  well-estaldished  ruli.'s  of  cvi- 
dence,  arc  to  be  proved  by  the  paper  itself,  axid  l.>y  that  alonc.,.if_it 
is  in  cxisteuce.^  But  it  is  not  required  that  the  whole  paper 
should  be  shown  to  the  witness.  Two  or  three  lines  only  of  a 
letter  may  be  exhibited  to  him,  and  he  may  be  asked,  whether  he 
wrote  the  part  exhibited.  If  he  denies,  or  does  not  admit  that 
he  wrote  that  part,  he  cannot  be  examined  as  to  the  contents  of 
such  letter,  for  the  reason  already  given  ;  nor  is  the  opposite  coun- 
sel entitled,  in  that  case,  to  look  at  the  paper.^  And  if  he  admits 
the  letter  to  be  his  writing,  he- cannot  be  asked  whether  statements,- 
such  as  the  counsel  may  suggest,  are  contained  in  it,  but  the  whole 
letter  itself  must  be  read,  as  the  only  competent  evidence  of  that 
fact.^  According  to  the  ordinary  rule  of  proceeding  in  such  cases, 
the  letter  is  to  be  read  as  the  evidence  of  the  cross-examining 
counsel,  in  his  turn,  when  he  shall  have  opened  his  case.  But  if 
he  suggests  to  the  court,  that  he  washes  to  have  the  letter  read 
immediately,  in  order  to  found  certain  questions  upon  its  contents, 
after  they  shall  have  been  made  known  to  the  court,  which  other- 
wise could  not  well  or  effectually  be  done ;  that  becomes  an  ex- 
cepted case  ;  and  for  the  convenient  administration  of  justice,  the 
letter  is  permitted  to  be  read,  as  part  of  the  evidence  of  the  coun- 
sel so  proposing  it,  sulyect  to  all  the  consequences  of  its  Ijeing 
considered.* 

§  164.  If  the  paper  in  question  is  lost,  it  is  obvious  that  the 

1  The  Queen's  case,  2  Brocl.  &  Binti.  for  the  purpose  of  explainiiis:  it,  read  a" 
286;  sujini,  (J§  87,  88;  Bellinger  v.  The  letter  from  himself  to. wliicli  the  letter  of 
People,  8  Wend.  o05,  598 ;    Kex  v.  Ed-  the  witness  is  a  reply.     Trisehct  v.  Ham- 
wards,  8  C.  «&  P.  2(5 ;  Regina  v.  Ta3'lor,  Id.  ilton  Insurance  Co.  14  Gray,  456.]    [*  The 
726.     If  tiie  paper  is  not  to  he  had,  a  cer-  Euiilish  courts  liold  that  itis  competent  to 
tified  copy  may  he  used.     Kcjiina  v.  Sliel-  cross-examine  the  party,  when  offered  to 
lard,  9  C.  &  P.  277.     So,  where  a  certified  supiiort  iiis  own  case,  as  to  the  contents 
copy  is  in  tlie  case  for  other  purposes,  it  of   an   nftidavit   or   letter   not    produced. 
may  he  used  for  this  also.     Da  vies  v.  Da-  Sladden  r.  Serjeant,  1  P.  &  P.  o22 ;  Par- 
vies,  9  C.  &  P.  25o.     But  the  witness,  on  row  r.  Bloomfield,  Id.  OoS.     So,  too,  as  to 
his  own  letter  heing  shown  to  him,  cannot  wiiether  he  had  read  a  letter  of  a  certain 
he  asked  whether  he  wrote  it  in  answer  to  date,   and   in   certain   terms.      Ireland   v. 
a  letter  to  him  of  a  certain  tenor  or  imjiort,  Stifl',  Id.  :j4(».     So  also  as  to  the  rules  of  a 
such  letter  not  heinti  produced.     See  Mc-  society    to    which    the    party    belonged. 
Donnell  r.  Kvans,  16  Jur.  103,  where  the  Minns  v.  Smith,  Id.  318.] 
rule  in  question  is  fully  discussed.    [Stamp-  -  Heudna  r.  Duncomhe,  8  C.  &  P.  369. 
er  V.  Griffin,  12  (ieo.  4-30.     If  a  party,  for  »  ii,iii  .  o  Brod.  &  Bing.  288. 
the  purpose  of  discrediting  a  witness,  by         ••  The  Queen's  case,  2  Brod.  &  Bing. 
showing  a  bias,  offers  in  evidence  a  letter  289,  2'JO. 
from  the  witness  to  himself,  he  may  also, 


516  LAW   OF   EYIDEN'CE.  [PART   III. 

course  of  examination,  just  stated,  cannot  be  adopted.  In  such 
case,  it  would  seem,  that  regularly,  the  proof  of  the  loss  of  the 
paper  should  first  he  offered,  and  that  then  the  witness  may  be 
cross-examined  as  to  its  contents;  after  which  he  maybe  contra- 
dicted by  secondary  evidence  of  the  contents  of  the  paper.  But 
where  this  course  would  be  likely  to  occasion  inconvenience,  by 
disturbing  the  regular  progress  of  the  cause,  and  distracting  the 
attention,  it  will  always  be  in  the  power  of  the  judge,  in  his  dis- 
cretion, to  prevent  this  inconvenience,  by  postponing  the  examina- 
tion, as  to  this  point,  to  some  other  stage  of  the  cause.^ 

§465.  A  w  it  III  ss  cannot  be  asked  on  cross-examination,  wAj'^Aer 
he  has  wrlttLti.  .mch  a  thing,  stating  its  particular  nature  or  pvirpprtj 
the  proper  course  being  to  put  the  writing  into  his  hands,  and  J;p 
ask  him  whether  it  is  his  writing.  And  if  he  is  asked  generally, 
whether  he  has  made  rtfyeaentaiions,  of  the  particular  nature 
stated  to  him,  the  counsel  will  be  required  to  specify,  whether  the 
question  refers  to  representations  in  writing,  or  in  words  alone ; 
and  if  the  former  is  meant,  the  inqniry,  for  the  reasons  before 
mentioned,  will  be  suppressed,  unless  the  writing  is  produced.^ 

/Ihit  whether  the  witness  may  be  asked  the  general  question, 
whether  he  has  given  any  account,  by  letter  or  otherwise,  differing 
from  his  present  statement ;  the  question  being  proposed  without 
any  reference  to  the  circumstance,  whether  the  writing,  if  there  be 
any,  is  or  is  not  in  existence,  or  whether  it  has  or  has  not  been 
seen  by  the  cross-examining  counsel ;  is  a  point  which  is  consid- 

\ered  still  open  for  discussion.  But  so  broad  a  question,  it  is  con- 
ceived, can  be  of  very  little  use,  except  to  test  the  strength  of  the 
witness's  memory,  or  his  confidence  in  assertion  ;  and,  as  such,  it 
may  well  be  suffered  to  remain  with  other  questions  of  that  class, 
subject  to  the  discretion  of  the  judge.^ 

§  466.  If  the  memory  of  the  witness  is  refreshed  hy  a  paper  put 
into  his  hands,  the  adverse  party  may  cross-examine  the  witness 
upon  that  paper,  without  making  it  his  evidence  in  the  cause.  But 
if  it  be  a  book  of  entries,  he  cannot  cross-examine  as  to  other 

1  See  McDonnell  v.  Evans,  16  Jur.  103;  l>arty  may  object  to  improper  inquiry,  al- 
ii Com.  B.  9;jU.  thoui-h  the  witness  do  not.     Newcomb  v. 

2  The  Queen's  case,  2  Brod.  &  Bing.  Griswold,  24  N.Y.  App.  298.  And  if  one 
292-294.  party  cross-examine  a  witness  as  to  certain 

^  This  question  is  raised  and  acutely  jiassaiies  in  a  letter,  the  other  may  insist 

treated,  in  I'hil.  &  Am.  on  Evid.  9.32-'.>;58.  upon  having  the  whole  letter  read.    Smith 

See  also  Kegina  v.  Siiellard,  9  C.  &  P.  277  ;  v.  Prickett,  7  Jur.  n.  s.  GIO.J 
Regina  v.  Ilolden,  8  C.  &  P.  606.     [*  The 


CHAP.  III.]  EXAMINATIOX   OF   WITNESSES.  517 

entries  in  the  book  without  making-  them  liis  evidence.^  But  if 
the  paper  is  shown  to  the  witness  merely  to  prove  the  handwriting, 
tliis  alone  does  not  give  the  opposite  party  a  right  to  inspect  it,  or 
to  cross-examine  as  to  its  contents.^  And  if  the  paper  is  sliown  to 
the  witness  upon  his  cross-examination,  and  he  is  cross-examined 
upon  it,  the  party  will  not  be  bound  to  have  the  paper  read,  until 
he  has  entered  upon  his  own  case.'^ 

§  4G7.  After  a  witness  has  been  cross-examined  respecting  a 
former  statement  made  by  him,  the  party  who  called  him  has 
a  right  to  re-examine  him  to  the  same  matter.'^  The  counsel  has  a 
right  upon  such  re-cxamination,  to  ask  all  questions  which  may 
be  proper  to  draw  forth  an  exjilanation  of  the  sense  and  meaning 
of  the  expressions,  used  by  the  witness  on  cross-examination, -if 
they  be  in  themselves  doul^tful ;  and  also  of  the  motive  by  which 
the  witness  was  induced  to  use  those  expressions ;  but  he  has  no 
right  to  go  further  and  to  introduce  mattef  new  in  itself,  and  not 
suited  to  the  purpose  of  explaining  either  the  expressions  or  the 
.motives  of  the  witness.^  This  point,  after  having  been  much  dis- 
cussed in  the  Queen's  case,  was  brought  before  the  court  several 
years  afterwards,  when  the  learned  judges  held  it  as  settled,  that 
proof  of  a  detached  statement,  made  by  a  witness  at  a  former  time, 
does  not  authorize  proof,  by  the  party  calling  that  witness,  of  all 
that  he  said  at  the  same  time,  but  only  of  so  much  as  can  be  in 
rfsome  way  connected  with  the  statement  proved.^  Therefore, 
where  a  witness  had  been  cross-examined  as  to  what  the  plaintiff 
said  in  a  particular  conversation,  it  was  held  that  he  could  not  be 
re-examined  as  to  the  other  assertions,  made  by  the  plaintiff  in  the 
same  conversation,  but  not  connected  with  the  assertions  to  which 
the   cross-examination   related  ;    although    the    assertions    as    to 


1  Gregory  v.  T.ivemor,  6  C.  &  P.  280;  eight  judges,  whose  opinion  was  taken  in 

supra,  §  437,  note.     And  see  Stephens  v.  the  House  of  Lords,  in  tlic  Queen's  ease, 

Foster' 6  C.  &.  P.  289.  as  deUvered  bv  Lord  Tcnterdeii,  2  Brod. 

-  Russell  V.  Rider,  6  C.  &  P.  416 ;  Sin-  &  Ring.  2'.l7.     The  counsel  calling  a  wit- 

clair  ;;.  Stevenson,  1  C.  &  P.  582;  2  Ring,  ness  who  gives  adverse  testimony,  eanii..t, 

514,  s.  c. ;  mpni,  §  437,  note.  in  re-exan»ination,  ask  the  witness  whether 

8  Holland  v.  Reeves,  7  C.  &  P.  36.  lie  has  not  given  a  ditlerent  account  of  tiie 

*  In  the  examination  of  witnesses  in  matter  to  the  attorney.     Winter  c.  Butt. '_' 

chancery,  under  a  connnission  to  take  de-  M.  &  Roh.  ;157.     See  supra,  >^  444.     See 

positions,  the  plaintitt'  is  not  allowed  to  also  Hohlsworth  r.  Mayor  t)f  Dartnioutii, 

re-examine,  unless  upon  a  special  case,  and  Id.  loo.     Rut    he   may  ask    the  question 

then  onlv  as  to  matters  not  comprised  in  upon  his  examinatiim  in  chief.     Wright  v. 

the  former  interrogatories.     King  of  Han-  Beckett,  1  M.  &  Rob.  414  ;  Dunn  v.  Aslett, 

over  r.  Wheatley,  4  Beav.  78.  2  M.  &  Rob.  122. 

5  Such  was  the  opinion  of  seven  out  of         ^  Prince  v.  Samo,  7  Ad.  &  El.  627. 

VOL.  I.  44 


518 


LAW   OF   EVIDENCE. 


[part   III. 


1  which  it  was  proposed  to  re-examine  him  were  connected  with  the 
subject-matter  of  the  suit.^ 

§  468.  If  the  counsel  chooses  to  cross-examine  the  witness  to 
facts,  loldcli  ivere  not  admissible  in  evidence,  the  other  party  has  a 
right  to  re-examine  him  as  to  the  evidence  so  given.  Tluis,  where 
issue  was  joined  upon  a  plea  of  prescription,  to  a  declaration  for 
trespass  in  G.,  and  the  plaintiff's  witnesses  were  asked,  in  cross- 
examination,  questions  respecting  the  user  in  other  places  than 
G.,  which  they  proved  ;  it  was  held  that  the  plaintiff,  in  re-exami- 
nation, might  show  an  interruption  in  the  user  in  such  other 
places.^  But  an  adverse  witness  will  not  be  permitted  to  obtrude 
such  irrelevant  matter,  in  answer  to  a  question  not  relating  to  it; 
and  if  he  should,  the  other  party  may  either  cross-examine  to 
it,  or  may  apply  to  have  it  stricken  out  of  the  judge's  notes.^ 

§  400.  Where  evidence  of  contradictort/  statements  by  a  witness, 
or  of  other  particular  facts,  as,  for  example,  that  he  has  been  com- 
,  mitted  to  the  House  of  Correction,  is  offered  by  way  of  impeach- 
ing his  veracity,  his  general  character  for  truth  being  thus  in 
some  sort  put  in  issue,  it  has  been  deemed  reasonable  to  admit 
general  evidence,  that  he  is  a  man  of  strict  integrity,  and  scru- 
pulous  regard  for  truth.^  •  But  evidence,   that  he   has  on  other 


1  Prince  v.  Samo,  7  Ad.  &  El.  627.  In 
this  case,  tlie  opinion  of  Lord  Tcnterden, 
in  tlie  Queen's  case,  2  Erod.  &  Bing.  298, 
quoted  in  1  Stai'k.  Evid.  180,  that  evidence 
of  the  whole  conversation,  if  connected 
with  the  suit,  was  admissible,  tliono'h  it 
were  of  matters  not  touched  in  the  cross- 
examination,  was  considered,  and  ovei'- 
ruled.  [Dutton  v.  Woodman,  9  Cush. 
255.] 

2  Blewett  V.  Tregonning,  3  Ad.  &  EI. 
554. 

3  Id.  554,  565,  581,  584. 

*  Piiil.  &  Am.  on  Evid.  944;  Rex  v. 
Clarke,  2  Stark.  R.  241.  And  see  supra, 
§§  54,  55  ;  Paine  v.  Tilden,  5  Washb.  554 ; 
Hadjo  V.  Gooden,  13  Ala.  718 ;  Sweet  v. 
Slierman,  6  Washb.  23.  [Where  a  witness 
admitted  on  cross-examination,  that  he 
liad  been  j)rosecuted,  but  not  tried,  for 
perjury,  the  party  calling  him  was  not 
permitted  to  give  evidence  of  his  general 
good  character.  People  v.  Gay,  1  Parker, 
C.  R.  308:  s.  c.  3  Selden,  378;  Wertz  v. 
May,  21  Penn.  St.  R.  274.  See  Har- 
rington V.  Lincoln,  4  Gray,  563,  565,  566, 
567.  In  this  case  a  witness  was  asked  in 
cross-examination,  for  the  avowed  purpose 
of  discrediting  him,  whether  he  liud  not 


been  indicted  and  tried  for  setting  fire  to 
his  barn,  and  he  answered  in  the  affirma- 
tive, and  also  stated  that  he  was  acquitted 
on  the  trial  of  the  indictment.  In  reply  to 
this  cross-examination,  and  to  sujjport  the 
credit  of  the  witness,  the  party  calling 
him  offered  evidence  as  to  his  reputation 
for  truth  and  veracity,  which  was  admit- 
ted under  objection.  Tiie  full  court  de- 
cided that  the  testimony  should  not  have 
been  admitted.  Thomas,  J.,  in  delivering 
the  opinion  of  the  court,  said :  "  If  the 
cross-examination  of  the  witness  showed 
that  he  had  been  charged  with  the  com- 
mission of  crime,  it  showed  also  that  upon 
fiur  trial  he  had  been  fully  acquitted.  It 
left  his  character  as  it  found  it.  We  think, 
therefore,  the  evidence  as  to  his  reputation 
for  truth  and  integrity  should  not  have 
been  admitted.  Had  the  eflect  of  the 
cross-examination  been  otherwise,  we  are 
not  prepared  to  say  the  reputation  of  the 
witness  for  truth  would  have  been  put  in 
issue.  The  doctrine  stated  in  the  text- 
books has  but  slight  foundation  of  author- 
ity to  rest  upon,  and  as  matter  of  reason 
will  not  bear  a  very  careful  probing.  The 
case,  however,  does  not  render  a  decision 
of  the  point  necessary.    See  also  Hey  wood 


CHAP.  III.] 


EXAMINATION   OF   WITNESSES. 


r>vd 


occasions  made  statements,  similar  to  what  he  has  tcstifieil  in  the 
canse,  is  not  admissible;^  unless  where  a  design  to  misrepresent 
is  charged  upon  the  witness,  in  e()nse(|uencc  of  his  rclati(jn  to 
the  i)arty,  or  to  the  cause ;  in  which  case,  it  seems,  it  may  1)C 
proper  to  show  that  he  made  a  similar  statement  before  that 
relation  existed.^  So,  if  the  character  of  a  deceased  attesting 
witness  to  a  deed  or  will  is  impeached  on  the  ground  of  fraud, 
"evidence  of  his  general  good  character  is  admissible.^  But  mere 
contradiction  among  witnesses  examined  in  court  su})plies  no 
ground  for  admitting  general  evidence  as  to  character.'^ 

[*  §  4G9a.  There  is  considerable  conflict  in  the  decisions,  in 


V.  Reed,  4  Gray,  574.  It  is  admissible  to 
ask  a  witness  if  he  has  not  said  that  he 
had  testified  for  the  defendant,  but  if 
called  again,  he  thouo-ht  he  should  testify 
for  the  ])Iaiiitiff,  and  if  he  does  not  recol- 
lect making  such  a  statement  to  prove  that 
lie  did  so.  Chapman  v.  Coffin,  14  Gray, 
454.]  [*  And  it  seems  that  the  mere  at- 
tempt to  imjieach  a  witness,  by  in<iuiring 
of  another  witness  what  was  his  character 
for  truth,  will  justify  general  evidence  of 
his  good  character,  notwithstanding  the 
witness  inquired  of  said  his  character  was 
good.  Commonwealth  v.  Ingraham,  7 
Gray,  46.  But  in  Brown  v.  Mooers,  6 
Gray,  451,  it  was  held  that  where  the 
character  of  the  witness  is  only  attempted 
to  be  impeached  by  proving  contradictory 
statements  made  by  him  out  of  court,  he 
could  not  be  sustained  by  general  evidence 
of  good  character ;  and  the  court  declare 
that  the  text  in  the  preceding  section  of 
our  author  "is  not  law,"  an  inference 
rather  too  obvious  to  require  much  publi- 
cation, provided  the  decision  of  the  court 
is  law.  The  reason  of  the  thing  is  cer- 
tainly in  favor  of  Mr.  Greenleaf's  doc- 
trine. And  how  the  court  in  Massachusetts 
Ciin  expect  to  reconcile  the  spirit  and  prin- 
ciple of  the  two  cases  cited  by  us  in  tliis 
note  will  be  for  them  to  consider.  We 
would  not  like  to  say,  they  are  neither  of 
them  sound  law;  but  it  seems  very  ol)- 
vious  to  us  both  cannot  be  maintained 
upon  any  sound  view  of  the  priucii)le  in- 
volved in  the  rule.  The  case  of  Brown  v. 
Mooers  is  certainly  too  narrow  in  its  re- 
strictions. For  if  the  witness  is  clearly 
sliown  to  have  made  contradictory  state- 
ments about  the  matter,  he  is  surely  far 
more  eftectually  im])eached  than  if  a  wit- 
ness were  asked  for  Ins  character  for  truth, 
and  declared  it  to  be  good.  In  the  latter 
case  it  would  seem  no  ground  had  been 
laid  for  the  introduction  of  general  evi- 


dence of  good  character,  more  than  if  the 
counsel  had  inquired  of  the  witness  him- 
self if  he  had  ever  been  impeached  in 
court,  and  he  had  replied  in  the  negative. 
But  in  the  former  case  it  is  obvious  the 
witness's  character  tor  truth  is  seriously 
damaged.  In  other  states,  general  evi- 
dence of  good  character  is  received ;  and 
we  must  still  maintain  that  our  author  is 
fairly  warranted  in  saying  that  it  should 
be.  State  v.  Rowe,  12  Vt.  93 ;  and  cases 
cited  before  in  this  note.] 

1  Bull.  N.  P.  294.  See  Cooke  v.  Cur- 
tis, 6  H.  &J.  93,  contra;  [Smitli  v.  Morgan, 
38  Maine,  468;  Smith  v.  Stickney,  17 
Barb.  489.  In  Deshon  v.  Merchants'  Ins. 
Co.  11  Met.  199,  209,  it  was  laid  down  as 
a  clear  rule  of  law  that  a  witness  cannot 
be  allowed  to  state,  on  the  direct  examina- 
tion, with  the  view  of  strengthening  his 
testimony,  that  he  communicated  to  third 
persons,  at  prior  times,  th.e  same  or  other 
particular  facts.  In  Commonwealth  r. 
Wilson,  1  Gray,  340,  where  in  re-exainina- 
ti,on  similar  testimony  was  ottered  for  a 
like  purpose,  Shaw,  C.  J.,  said,  "  Tlie 
rule  excluding  such  testimony  is  confined 
to  the  examination  in  chief,  and  does  not 
apply  to  a  case  where  the  other  party  has 
sought  to  impeach  the  witness  on  cross- 
examination.  The  pur])ose  of  tlie  cross- 
examination  in  this  particular  having  been 
to  impeach  the  witness,  the  question  may 
be  put."  See  also  Boston  &  Wore.  R.  R. 
Co.  V.  Dana,  1  Gray,  83,  103.] 

2  2  Phil.  Evid.  445,  446. 

8  Doe  i;.  Stephenson,  3  Esp.  284;  4 
Esp.  50,  s.  c,  cited  and  approved  by  Lord 
Ellenborough,  in  The  Bislioj)  of  Durham  u. 
Beaumont,  1  Campb.  207-210,  and  in  Pro- 
vis  r.  Reed,  5  Bing.  135. 

*  Bishop  of  Durham  v.  Beaumont,  1 
Canijib.  207;  1  Stark.  Evid.  186;  Russell 
r.  CotKii,  8  Pick.  143,  154 ;  Starks  v.  The 
I'eople,  5  Deiiio,  106. 


i20 


LAW    OF   EVIDENCE. 


[part  hi. 


regard  to  the  order  of  proof,  and  the  course  of  trial,  in  the  dif- 
ferent states.  In  some  of  the  states,  the  party  is  only  required  to 
make  apriyndfacie  case  in  the  opening,  and  may  reserve  confirma- 
tory proof  in  support  of  the  very  points  made  in  the  opening,  till 
he  finds  upon  Avliat  points  his  opening  case  is  attacked,  and 
then  fortify  it  upon  those  points.^  And,  in  some  of  the  states,  it 
is  understood,  that  this  process  of  making  and  answering  the 
plaintiff's  case  is  allowed  to  be  repeated  an  indefinite  number  of 
times.^  But,  at  common  law,  the  plaintiff  puts  in  his  whole  evi- 
dence upon  every  point  which  he  opens,  and  the  defendant  then 
puts  in  his  entire  case ;  and  the  plaintiff's  reply  is  limited  to  new 
points,  first  opened  by  defendant.  And  the  court  in  banc,  in 
passing  upon  the  sufficiency  of  plaintiff's  case,  cannot  look  at  the 
defendant's  evidence.^  .  And  it  is  held  to  rest  in  the  discretion  of 
the  judge,  subject  to  review  in  banc,  at  what  stage  in  the  trial 
evidence  may  be  produced.^] 


1  [*Clayes  v.  Ferris,  10  Vt.  112.  But, 
in  this  state,  the  defendant  must  put  in  all 
his  evidence  in  tlie  first  instance,  and  tlie 
plaintiff  in  his  reply  is  confined  to  fortity- 
ing  those  points  in  his  case  which  are  at- 
tacked hy  defendant. 

-  This  is  tlie  case  in  New  Hampshire, 
where,  if  one  party  give  irrelevant  or  in- 


competent evidence,  this  will  entitle  the 
other  to  go  into  evidence  in  reply  to  it. 
Furbush  v.  Goodwin,  5  Foster,  425.  But 
in  general  the  rule  is  otherwise.  Mitchell 
V.  Sellman,  5  Md.  376;  Shedden  r.  Pat- 
rick, -2  Sw.  &  Tr.  170. 

2  liawlings  v.  Chandler,  9  Exch.  687. 

4  Wright  V.  Willcox,  9  C.  B.  650.] 


CHAP.  IV.]  PUBLIC   DOCUxMENTS.  521 


CHAPTER    IV. 


OF    WRITTEN   EVIDENCE. 

[*  §  470.  "Writings,  viewed  as  evidence,  are  public  and  private. 

471.  All  persons  entitled  to  inspection  of  public  documents. 

472.  Officers  of  court  compell.able  to  give  inspection  of  papery. 

473.  As  to  inferior  courts  the  right  is  more  restricted. 

474.  Books  of  corporations  public  as  to  corporators.  - 

475.  Books  of  public  offices  may  be  inspected  by  those  interested. 

476.  But  not,  if  liable  to  atl'ect  injui-iously  public  interests. 

477.  Rule  to  inspect  and  take  copies  of  books  and  writings. 

478.  When  no  action  pending,  may  be  obtained  by  mandanms,  &c. 

479.  Proof  of  public  acts  not  judicial. 

480.  Legislative  acts  proved  by  official  jmnted  copies. 

481.  Courts  do  not  take  judicial  notice  of  private  acts. 

482.  Journals  of  legislature  proved  by  sworn  or  official  printed  copies. 

483.  Official  registers  admissible  as  original  evidence. 

484.  May  be  proved  by  duly  authenticated  copies. 

*    485.  Must  be  contemporaneous  and  from  proper  repository. 

486.  Proof  of  foreign  laws  addressed  to  the  court.     Denied. 

487.  Foreign  written  law  proved  by  autlienticated  copy,  or  by  proclamation. 

488.  Sworn  copy  sufficient.     Unwritten  law  proved  by  experts. 

488a.  How  far  courts  will  presume  the  existence  of  same  law  in  foreign  country. 

489.  Acts  of  state  legislature  proved  by  official  printed  cop^',  or  by  state  seal. 

490.  Courts  of  the  United  States  take  notice  of  state  statutes,  and  the  stiite  courts 

also  of  acts  of  congress. 

491.  Public  documents,  evidence  of  facts  recited  in  them. 

492.  Official  gazette,  proof  of  official  acts  there  published. 

493.  To  wliat  extent  official  registers  evidence. 

494.  The  register  of  a  ship  has  no  official  character. 

495.  Log-book  of  ship  not  evidence  unless  made  so  by  statute. 

496.  Character  of  offici.al  registry  established  by  custom  as  well  as  statute. 

497.  Books  of  history  admissible  to  prove  general  facts  of  ancient  date. 

498.  Certificates  not  admissible  as  evidence  unless  made  so  by  statute.] 

§  470.  Writings  are  divisible  into  two  classes,  namely,  Public 
and  Private.  The  former  consists-  of  the  acts  of  pul)lic  function- 
aries, in  the  executive,  legislative,  and  judicial  departments  of 
government,  including,  under  this  general  head,  the  transactions 
which  official  persons  are  required  to  enter  in  books  or  registers, 

44* 


522  LAW   OF   EVIDENCE.  [PART   III. 

in  the  course  of  tlieir  public  duties,  and  -\vhicli  occur  within  the 
circle  of  their  own  personal  knowledge  and  oljservation.  To  the 
same  head  may  be  referred  the  consideration  of  documentary  evi- 
dence of  the  acts  of  state,  the  laws  and  judgments  of  courts  of 
foreign  governments.  Public  writings  arc  susceptible  of  another 
division,  they  being  either  (1.)  judicial,  or  (2.)  not  judicial ;  and 
with  respect  to  the  means  and  mode  of  proving  them,  they  may  be 
classed  into,  (1.)  those  which  are  of  record,  and  (2.)  those  which 
are  not  of  record.  It  is  proposed  to  treat,  first,  of  public  docu- 
ments, and  secondly,  of  those  writings  which  are  private.  And  in 
regard  to  both  classes,  our  inquiries  will  be  directed,  (1.)  to  the 
mode  of  obtaining  an  inspection  of  such  documents  and  writings ; 
(2.)  to  the  method  of  proving  them ;  and,  (3.)  to  their  admissi- 
bility and  effect. 

§  471.  And  first,  in  regard  to  the  inspection  of  public  docu- 
ments, it  has  been  admitted,  from  a  very  early  period,  that  the 
inspection  and  exemplification  of  the  records  of  the  king^s  courts  is 
the  common  right  of  the  subject.  This  right  was  extended,  by  an 
ancient  statute,^  to  cases  where  the  subject  was  concerned  against 
the  king.  The  exercise  of  this  right  docs  not  appear  to  have  been 
restrained.  Until  the  reign  of  Charles  II.,  when,  in  consequence  of 
the  frequency  of  actions  for  malicious  prosecution,  wliich  could 
not  be  supported  without  a  copy  of  the  record,  the  judges  made 
an  order  for  the  regulation  of  the  sessions  at  the  Old  Bailey 
prohibiting  the  granting  of  any  copy  of  an  indictment  for  felony, 
without  a  special  order,  upon  motion  in  open  court,  at  the  general 
jail  delivery .2  This  order,  it  is  to  be  observed,  relates  only  to 
indictments  for  felony.  In  cases  of  misdemeanor,  the  right  to  a 
copy  has  never  been  questioned.^    But  in  the  Tlnitg^]  St^t^^s,  no. 


1  4G  Ed.  III.,  in  the  Preface  to  3  Coke's  tious,  refused  an  application  for  a  copy  of 

Rep.  p.  iv.  the  record,  on  tlie  j^roiind  that  no  order 

-  Orders  and  Directions,  16  Car.  II.,  pre-  was  necessary;  declaring-,  tliat  "by  the 
fixed  to  8ir  J.  Kelyng's  Reports,  Order  vii.  laws  of  the  realm  every  prisoner,  upon  Ids 
Witli  respect  to  the  general  records  of  the  acquittal,  liad  an  undoubted  right  and  title 
reahn,  in  wuch  cases,  cojues  are  obtained  to  a  coj)}'  of  the  record  of  such  acquittal, 
upon  api)lication  to  the  attorney-general,  for  any  use  he  might  think  tit  to  make  of 
Leggatt  V.  ToUervey,  14  East,  oUti.  But  it ;  and  that,  after  a  demand  of  it  had  been 
if  the  copy  were  obtained  witliout  order,  made,  tlie  proper  officer  might  be  pun- 
it  will  not,  on  tliat  account,  bo  rejected,  ished  for  refusing  to  make  it  out."  A 
Ibid. ;  Jordan  v.  Lewis,  Id.  395,  note  (b)  ;  strong  doubt  of  the  legahty  of  the  order 
Caddy  ;;.  Barlow,  1  M.  &  Ry.  275.  But  of  16  Car.  II.,  was  also  raised  in  Browne  v. 
Lord  Cbief  Justice  Willes,  in  Rex  v.  Bran-  Cumming,  10  B.  &  C.  70. 
gam,  1  Leach,  Cr.  (.'as.  '■>'!.  in  tiie  case  of  ^  Morrison  v.  Kelley,  1  W.  Bl.  385. 
a  prosecution  for  robbery,  evidently  vexa- 


CHAP.  IV.] 


PUBLIC    DOCUMENTS. 


523 


regulation  of  this  kind  is  known  to  have  been  expressly  made ; 
and  any  limitation  of  the  right  to  a  copy  of  a  judicial  record  or 
paper,  when  a])plied  for  by  any  person  having  an  interest  hi  it, 
would  i)robably  be  deemed  repugnant  to  the  genius  of  American 
institutions.^ 

§  472.  Where  writs,  or  other  papers  in  a  cause,  arc  officially  in 
the  custody  of  an  officer  of  the  court,  he  may  be  compelled  by  a  rule 
of  court,  to  allow  an  inspection  of  them,  even  though  it  be  to  fur- 
nish evidence  in  a  civil  action  against  himself.  Thus,  a  rule  was 
granted  against  the  marshal  of  the  King's  Bench  prison,  in  an 
action  against  him  for  an  escape  of  one  arrested  upon  mesne  pro- 
cess, to  permit  the  plaintiif's  attorney  to  inspect  the  writ  by  which 
he  was  committed  to  his  custody .^^ 

§  473.  In  regard  to  the  records  of  inferior  tfil>unals.f  the  right  of 
inspection  is  more  limited.  As  all  persons  have  not  necessarily  an 
interest  in  them,  it  is  not  necessary  that  they  should  be  open  to 
the  inspection  of  all,  without  distinction.  The  party,  therefore, 
who  wishes  to  inspect  the  proceedings  of  any  of  those  courts, 
should  first  apply  to  that  court,  showing  that  he  has  soine  interest 
in  the  document,  and  that  he  rc(juircs  it  for  a  proper  purpose.^  If 
it  should  be  refused,  the  court  of  chancery,  upon  affidavit  of  the 
fact,  may  at  any  time  send,  by  a  writ  of  certiorari,  either  for 
the  record  itself,  or  an  exemplification.  The  King's  Bench  in 
England,  and  the  Supreme  courts  of  common  law  in  America, 
have  the  same  power  by  wancZamifs;^  and  this  whether  an  action 
be  pending  or  not.^ 

§  474.  There  are  other  records  which  partake  both  of  a  public  and 
private  character,  and  are  treated  as  the  one  or  the  other,  accord- 
ing to  the  relation  in  which  the  applicant  stands  to  them.  Thus, 
the  books  of  a  corporation  are  public  with  respect  to  its  members, 
but  private  with  respect  to  strangers.^  In  regard  to  its  members, 
a  liulc  for  inspection  of  the  writings  of  the  corporation  will  be 


1  Stone  r.  Crocker,  24  Tick.  .88,  per 
Morton,  J.  The  only  case,  known  to  the 
author,  in  wliich  the  English  rule  was 
acted  on,  is  that  of  The  People  v.  PoUyon, 
2  Caines,  202,  in  which  a  copy  was  moved 
for  and  granted. 

2  Fox  V.  Jones,  7  B.  &  C.  732. 

"  If  he  has  no  legal  interest  in  the 
record,  the  court  may  refuse  the  applica- 
tion. Powell  r.  IJrad'bury,  4  M.  G.  &  Sc. 
641 ;  iu/ia,  g  63y. 


*  Gresley  on  Evid.  pp.  115,  116;  Wil- 
son V.  Kogers,  2  Stra.  1242;  Kex  v.  Smith, 
1  Stra.  12G  ;  l?ex  ;-.  Tower,  4  M.  &  S.  H32; 
Herbert  v.  Asliburncr,  1  Wils.  2'J7 ;  Eex 
V.  Allgood,  7  T.  U.  74C) ;  Rex  v.  Sherifl'of 
Chester,  1  Cliittv,  K.  47D. 

5  Kex  r.  Lucas,  10  East,  235,  236,  per 
Lord  EUenborough. 

••  Gresley  on  Evid.  116. 


52-1  LAW   OF   EVIDENCE.  [PART   III. 

granted  of  course,  on  their  application,  where  such  inspection  is 
shown  to  he  necessary,  in  regard  to  some  particular  matter  in 
dispute,  or  where  the  granting  of  it  is  necessary,  to  prevent  the 
api»licant  from  suffering  injury,  or  to  enahle  him  to  perform  his 
duties  ;  and  tlie  inspection  will  tiien  be  granted,  only  so  far  as  is 
shown  to  be  essential  to  that  cnd.^  But  a  stranger  has  no  right 
to  such  rule,  and  it  will  not  be  granted,  even  where  he  is  defend- 
ant in  a  suit  brought  by  the  corporation.^  In  this  class  of  records 
are  enumerated  parish  books,^  transfer  books  of  the  East  India 
Company,^  public  lottery  books,^  the  books  of  incorporated  banking 
companies,'^  a  bishop's  registry  of  presentations,'  and  some  others 
of  the  like  kind.  If  an  inspection  is  wanted  by  a  stranger,  in  a 
case  not  within  this  rule  of  the  common  law,  it  can  only  be  ob- 
tained by  a  bill  for  a  discovery  ;  a  court  of  equity  permitting  a 
discovery  in  some  cases,  and  under  some  circumstances,  where 
courts  of  law  will  not  grant  an  inspection.^  And  an  inspection  is 
granted  only  where  civil  rights  are  depending ;  for  it  is  a  constant 
and  invariable  rule,  that,  in  criminal  cases,  the  party  shall  never 
be  obliged  to  furnish  evidence  against  himself.  ^ 

§  475.  Inspection  of  the  hooks  of  puhlic  officers  is  subject  to  the 
same  restriction,  as  in  the  case  of  corporation  books ;  and  access 
to  them  will  not  be  granted  in  favor  of  persons  who  have  no 
interest  in  the  books.  Thus,  an  inspection  of  the  books  of  the 
post-office  has  been  refused,  upon  the  application  of  the  plaintiff,  in 
a  qui  tam  action  against  a  clerk  in  the  post-office,  for  interfering  in 
the  election  of  a  member  of  parliament,  because  the  action  did  not 
relate  to  any  transaction  in  the  post-office,  for  which  alone  the 
books  were  kept.^^     Upon  the  same  ground,  that  the  subject  of 

1  Rex  V.  Mcrcliant  Tailors'  Co.  2  B.  &  7  Mod.  129,  s.  c. ;  Shelling  v.  rarrner,  1 

Ad.  115;  State  of  Louisiana,  rx  re/.  Hatch  Str.  ()46. 

t,'.  City  Bank  of  New  Orleans,  Sup.  Court,  ^  Schinotti  v.  Bumstead,  1  Tidd's  Pr. 

La.,    March    T.    1842;    The    Teople    v.  594, 

Throop,  12  Wend.  l.s;5.  "  Brace  v.  Ormond,  1  Meriv.  409 ;  The 

-  Mayor  of  Southampton  v.  Greaves,  8  People  v.  Throo]),  12  Wend.  183 ;  Union 

T.  R.  590.     The  party,  in  such  case,  can  Bank  v.  Knapp,  3  Pick  9G ;  [IMcKavlin  v. 

only  give  notice  to  the  corporation  to  pro-  Bresslin,  8  Gray,  177J ;  Mortimer  v.  M'Cal- 

duce  its   Ijooks  and   papers,   as   in  other  Ian,  (J  M.  &  W.  58. 

cases  hetwecii  i)rivate  ])ersons.     See,  ae-  "^  Bex  v.  Bp.  of  Ely,  8  B.  &  C.  112; 

cordingly,   Jiurrell  v.  Nicholson,   3  B.  &  Finch  v.  Bp.  of  Ely,  2  M.  &  Ry.  127. 

Ad.   (J49;   Bank   of  Utica  v.   Hilliard,  5  **  Gresley  on  Evid.  116,  117. 

Cowen,  419  ;  0  Covven,  G2,  8.  c. ;  Imperial  ^  Tidd's  Pr.  593.     Under  this  rule,  an 

Gas  Co.  V.  Clarke,  7  Bing.  95  ;  Rex  v.  Jus-  information,  in  the  nature  of  a  quo  icar- 

tices  of  Buckingham,  8  B.  &  C.  375.  runto,  is  considered  as  merely  a  civil  pro- 

«  Cox  V.  Coi)ping,  5  Mod.  395;  Newell  ceeding.     Rex  ?•.  Hahh,  3  T.  R.  582.     Seo 

r.  Simkin,  f.  Bing.  565;  Jacocks  v.  Gil-  also  Rex  v.  Dr.  Purnell,  1  Wils.  239. 

Ham,  3  Murph.  47.  '^^  Crew   v.   Blackhurne,  cited   1  Wils. 

•»  Geery  v.  llopkins,  2  Lord  Raym.  851;  240;  Crew  v.  Saunders,  2  Str.  1005. 


CHAP.  IV.]  PUBLIC   DOCUMENTS.  525 

the  action  was  collateral  to  the  suhjcct-mattcr  and  clcsign  of  the 
books,  an  inspection  of  the  books  of  the  custom-house  has  been 
refused.^  Such  inspections  are  also  sometimes  refused  on  grounds 
of  puldic  i)olicy,  the  disclosure  sought  Iteing  considered  dcti'imcntal 
to  the  public  interest.  Upon  the  same  principle  of  an  interest  in 
the  ))Ooks,  the  tenants  of  a  manor  are  generally  entitled  to  an 
inspection  of  the  court-rolls,  wherever  their  own  rights  are  con- 
cerned ;  but  this  privilege  is  not  allowed  to  a  stranger.^ 

§  476.  But,  in  all  cases  of  piiblic  writings,  if  the  disclosure  of 
tlicir  contents  would,  cither  in  tlic  judgment  of  the  court  or  of  the 
chief  executive  magistrate,  or  the  head  of  department,  in  whose 
custody  or  under  whose  control  they  may  be  kept,  be  injurious  to 
the  public  interests,  an  inspection  will  not  be  granted.^ 

§  477.  The  motion  for  a  rule  to  inspect  and  take  copies  of  books 
and  writings^  when  an  action  is  pending,  may  be  made  at  any  stage 
of  the  cause,  and  is  founded  on  an  affidavit,  stating  the  cir- 
cnmstanecs  under  which  the  inspection  is  claimed,  and  that  an 
a})plieation  therefor  lias  been  made  to  the  proper  quarter,  and 
refused.'^ 

§  478.  But  when  no  action  is  jjendlng^  the  proper  course  is  to 
move  for  a  rule  to  show  cause  why  a  mandamus  should  not  issue, 
commanding  the  officer  having  custody  of  the  books  to  permit  the 
applicant  to  inspect  them,  and  take  copies.  The  application  in  tliis 
case  should  state  some  specific  object  sought  by  the  inspection, 
Und  be  supported  by  an  affidavit,  as  in  the  case  preceding.  If  a 
rule  is  made  to  show  cause  why  an  information,  in  the  nature  of 
a  quo  warranto,  should  not  be  filed,  a  rule  for  an  inspection  will  be 
granted  to  the  prosecutor,  immediately  upon  the  granting  of  a  rule 
to  show  cause.  But  if  a  rule  be  made  to  show  cause  why  a  man- 
damus should  not  be  awarded,  the  rule  for  an  inspection  will  not 
be  granted,  until  the  mandamus  has  been  issued  and  returned.^ 

§  479.  We  proceed  now,  to  consider  the  mode  of  proof  of  public 
documents,  beginning  with  those  which  are  not  judicial.  And 
first,  of  acts  of  state.  It  has  already  been  seen,"  that  courts  will 
judicially  take  notice  of  the  political  constitution,  or  frame  of  the 

1  Atherfokl  v.  Beard,  2  T.  R.  610.  *  Titld's  Pr.  595,  596.     [See  lasigi  r. 

2  Rex  V.  Shcllev,  3  T.  R.  141 ;  Rex  v.  Brown,  1  Curtis,  Ct.  Ct.  401 ;  injm,  § 
AUirood,  7  T.  R.  746.     See  Rex  v.  Host-    559.] 

men  of  Newcastle,  li  Stra.  1223,  note  (1),  ''''  1  Tkld's  Pr.  596;  Rex  v.  Justices  of 

by  Nolan.  Surrey,  Sayer,  R.  144;  Rex  v.  Shelley,  3 

^  Supra,  §§  250,  251,  and  cases  there  'V.  H."  141;"  Rex  v.  Hollister,  Cas.  Temp, 

cited.  Ilardw.  245. 


52G  LAW   OF  EVIDENCE.  [PART  III. 

government  of  their  own  country,  its  essential  political  agents,  or 
officers,  and  its  essential  ordinary  and  regnlar  operations.  The 
great  seal  of  the  state  and  the  seals  of  its  jndicial  tribunals  require 
no  proof.i  Courts  also  recognize,  without  other  proof  than  inspec- 
tion, the  seals  of  state  of  other  nations,  which  have  been  recog- 
nized by  their  own  sovereign.  The  seals,  also,  of  foreign  courts 
of  admiralty,  and  of  notaries-pul)lic,  are  recognized  in  tlie  like 
manner.2  Public  statutes,  also,  need  no  proof,  being  supposed  to 
exist  in  the  memories  of  all;  but,  for  certainty  of  recollection, 
reference  is  had  either  to  a  copy  from  the  legislative  rolls,  or  to 
the  book  printed  by  public  authority .^  Acts  of  state  may  be 
proved  by  production  of  the  original  printed  document,  from  a 
press  authorized  by  government.'^  Proclamations,  and  other  acts 
and  orders  of  the  executive,  of  the  like  character,  may  be  proved 
by  production  of  the  government  gazette,  in  which  tliey  were 
authorized  to  be  printed.^  Printed  copies  of  public  documents, 
transmitted  to  congress  by  the  President  of  the  United  States, 
and  printed  by  the  printer  to  congress,  are  evidence  of  those  docu- 

Iments.^  And  liere  it  may  be  proper  to  observe,  that,  in  all  cases 
of  proof  by  a  copy,  if  the  copy  has  been  taken  by  a  machine, 
worked  by  the  witness  who  produces  it,  it  is  sufficient.'^  The 
certificate  of  the  Secretary  of  State  is  evidence  that  a  particular 
person  has  been  recognized  as  a  foreign  minister.''  And  the 
certificate  of  a  foreign  governor,  duly  authenticated,  is  evidence  of 
his  own  official  acts.^ 

§  480.  Next,  as  to  legislative  acts,  which  consist  of  statutes, 
resolutions,  and  orders,  passed  by  the  legislative  body.  In  regard 
to  private  statutes,  resolutions,  &c.,  the  only  mode  of  proof,  known 
to  the  common  law,  is  either  by  means  of  a  copy,  proved  on  oath  to 
have  been  examined  by  the  roll  itself;    or,  by  an  exemplification 


1  Wearnack  v.  Doarman,  7  Tort.  513.        cron  v.  Dowick,  2  Canipb.  42 ;  Bull.  N.  P. 

220;  Atturney-General  /•.  Thcakstono,  8 
Price,  8',>.  An  api)i)iiitinont  to  a  commis- 
sion in  the  army  cannot  l)e  proved  by  the 
gazette.  Kcx  ('.  Gardner,  2  Campb.  513; 
Kirwan  v.  Cockbnrn,  5  Esp.  233.    See  also 


2  Snpra,  §§  4,  5,  tj ;  Story  on  Confl.  o&_ 
Laws,  §  643  ;  Robinson  v.  Gilman,  7  Shepr.\^ 
W.) ;  Coit  I".  Milliken,  1   Denio,  37(3.     A* 
protest  of  a  bill  of  exchange,  in  a  foreign 
country,  is  sutliciently  proved  by  the  seal 


of  the  foreign  notarv.    Willes,  550;  Anon.  Kex  v.  Forsyth,  R.  &  Ry.  274,  275 

12  Mod.  345;  Ravlcv  on  P.ills,  515  (Phil-  «  Kadclitf  v.  United  Ins.  Co.  7  Johns. 

lips  &  Sewall's  edit") ;  Storv  on  Bills,  §§  38,  per  Kent,  C.  J. 

276,  277 ;  La  Caygas  v.  Larionda,  4  Mart.  "  Simpson  v.  Thoreton,  2  M.  &  Rob. 

283.  433. 

3  Bull.  N.  P.  225.  *  United  States  v.  Benner,   1  Baldw. 

*  Kex  V.  Withers,  cited  5  T.  R.  436;  288. 
Watkins  v.  Holman,  10  Peters,  25.  ^  United  States  v.  Mitchell,  3  Wash.  5. 

5  Rexr.  Holt,  5  T.  R.  430  ;  Van  Ora- 


CHAP.  IV.] 


PUBLIC   DOCUMENTS. 


627 


under  tlic  great  seal.  But  iu  most  if  not  all  of  the  United  States, 
the  printed  copies  of  the  laws  and  resolves  of  the  legislature,  pub- 
lished by  its  authority,  arc  competent  evidence  either  by  statute, 
or  judicial  decision  ;  and  it  is  sufficient  prim4  facie,  that  the  book 
})urports  to  have  been  so  printed.^  It  is  the  invarial>le  course  of 
the  legislatures  of  the  several  states,  as  well  as  of  the  United 
States,  to  have  the  laws  and  resolutions  of  each  session  printed 
by  authority .2  Confidential  persons  are  selected  to  compare  the 
copies  with  the  original  rolls,  and  superintend  the  printing.  The 
very  object  of  this  provision  is  to  furnish  the  people  with  authentic 
copies ;  and,  from  their  nature,  printed  copies  of  this  kind,  either 
of  public  or  private  laws,  are  as  much  to  be  depended  on,  as  the 
exemplification,  verified  by  an  officer  who  is  a  keeper  of  the  rec- 
ord.-^ 

§  481.  If  in  a  private  statute  a  clause  is  inserted,  that  it  shall  be 
take)i  notice  of,  as  if  it  were  a  public  act;  this  not  only  dispenses 
with  the  necessity  of  pleading  it  specially,  but  also  changes  the 
mode  of  proof,  by  dispensing  with  the  production  of  an  exemplified 
or  sworn  copy.'^ 


1  Young  V.  Bank  of  Alexandria,  4 
Oranch,  388 ;  Biddis  v.  James,  6  Binn. 
321,  32G;  Hex  v.  Forsyth,  Iluss.  &  By. 
275.  See  iu/ra,  §  489.  [As  to  the  effect 
to  be  given  to  tiie  vohnne  termed  the 
"  Bevised  vStatntes  of  Connecticut,"  see 
Eld  ('.  Gorham,  20  Conn.  8.  The  testi- 
mony of  an  attornej'  at  law  of  another 
state  is  not  legal  evidence  of  the  statute 
law  of  that  state,  where  it  affects  the  mer- 
its of  the  case.  Smith  r.  Potter,  1  Wil- 
liams (Vt.),  304.  In  ^f(lssa<:/n^sHls,  it  is 
provided  by  statute  that  "all  acts  of  incor- 
poration shall  be  <leeme(l  public  acts,  and, 
as  such,  may  be  declared  on  and  given  in 
evidence,  without  specially  pleading  the 
same.  Bev.  Stat.  ch.  2,  §  3.  In  U/u'o,  it 
is  enacted,  that  in  pleading  a  private  stat- 
ute or  a  right  derived  therefrom,  it  shall 
be  sufficient  to  refer  to  such  statute  by  its 
title  and  the  day  of  its  passage,  .and  the 
court  shall  thereupon  take  judicial  notice 
thereof.  Bev.  Stat,  by  Curwen  (1854), 
vol.  3,  p.  1U5G.J 

2  [  The  edition  of  the  Laws  and  Treaties 
of  the  United  States,  published  by  Little 
&  Brown,  is  declared  to  be  competent  evi- 
dence of  the  several  public  and  private 
acts  of  congress  and  of  the  several  treaties 
therein  contained,  in  all  the  courts  of  law 
an<l  equity  and  of  maritime  jurisdiction, 
and  in  all  the  tribunals  and  public  offices 
of  the  United  States,  and  of  the  several 


states,  without  any  further  proof  or  au- 
thentication thereof.  Stat.  1846,  ch.  c.  § 
2; '.»  Stats,  at  Large,  p.  7G.] 

3  Per  Tilghman,  C.  J.,  6  Binn.  326. 
See  also  Watkins  v.  Ilohnan,  16  Peters, 
25 ;  Holt,  C.  J.,  held,  that  an  act,  printed 
by  the  king's  printers,  was  alwa^'s  good 
evidence  to  a  jury ;  though  it  was  not  suf- 
ficient upon  an  issue  of  nnl  tid  record. 
Anon.  2  Salk.  566.  [The  laws  revised  and 
adopted  by  the  territorial  legislature  of 
Miciugan,  in  1827,  were  the  statutes  as 
jir(>ri(>ii.'<li/  pr/tttfd.  It  was  lu'ld.  tiiat  the 
printeil  book  containing  the  statute  is  the 
best  evidence  of  what  the  statute  actually 
was,  and  that  the  original  record  is  not  to 
be  received  to  show  that  the  printed  book 
is  incorrect,  or  as  evidence  of  the  statute, 
as  adopted  an<l  enacted  at  tliat  time.  Es- 
pecially will  this  be  so  where  the  error  is 
not  discovered  for  a  long  time,  and  the 
statute  is  treated  and  considered  as  the 
actual  law.  Pease  v.  Peck,  18  How.  U.  S. 
5'J5.] 

•*  Beaumont  ?•.  Mountain,  10  Bing.  404. 
The  contrary  seems  to  have  been  held  in 
Brett  V.  Beales,  1  M.  &  iMalk.  421 ;  but 
that  case  was  overruled,  as  to  this  point, 
in  Woodward  r.  Cotton,  1  C.  M.  .Si  B.  44, 
47.  [*An  act  which  extends  to  all  per- 
sons within  the  territorial  limits  defined 
is  a  pul)lic  statute.  Levy  r.  The  State, 
6  Ind.  281;  and  will  be  judicially  noticed 


528  LAW   OF   EVIDENCE.  [PAET   III. 

§  482.  Ill  regard  to  the  journals  of  cither  branch  of  the  legisla- 
ture, a  former  remark^  maybe  here  repeated,  equally  applicable 
to  all  other  imhlic  records  and  documents^  namely,  that  they  con- 
t>titutc  an  exception  to  the  general  rule,  which  requires  the  pro- 
duction of  the  best  evidence,  and  may  be  proved  by  examhied 
copies.  This  exception  is  allowed,  because  of  their  nature,  as 
original  public  documents,  which  arc  not  removable  at  the  call 
of  individuals,  and,  because,  being  interesting  to  many  persons, 
they  might  be  necessary,  as  evidence,  in  different  places  at  the 
same  timc.^  Moreover,  these  being  public  records,  they  would  be 
recognized  as  such  l)y  the  court,  upon  being  produced,  without 
collateral  evidence  of  their  identity  or  genuineness ;  and  it  is 
a  general  rule,  that,  whoever  U^^^^ 

no  collateral  proof  upon  its_production,,it  is  proynbl^  )^y  a  coj^y.^ 
These  journals  may  also  be  proved  by  the  copies  printed  by  the 
government  printer,  by  authority  of  the  house.* 

§  483.  The  next  class  of  public  writings  to  be  considered,  con- 
sists of  official  refiisters,  or  books  kept  by  person^  in  D;]^;^,  <Mst' 
in  which  they  are  required,  whether  by  statute  or  by  the  nature 
of  their  office,  to  write  down  particular  transactions,  occurring  in 
the  course  of  their  public  duties,  and  under  their  personal  observa- 
tion. These  documents,  as  well  as  all  others  of  a  })ul)lic  nature, 
are  generally  admissible  in  evidence,  notwithstanding  their  authen- 
ticity is  not  confirmed  by  those  usual  and  ordinary  tests  of  truth, 
the  obhgation  of  an  oath,  and  the  power  of  cross-examining  the 
persons,  on  whose  authority  the  truth  of  the  documents  depends. 
Tlie  extraordinary  degree  of  confidence,  it  has  been  remarked, 
which  is  reposed  in  such  documents,  is  founded  principally  upon 
the  circumstance,  that  they  have  been  made  by  autliorized  and 
^accredited  agents,  appointed  for  the  purpose ;  but  partly  also  on 
the  publicity  of  their  subject-matter.  Where  the  particular  facts 
are 'inquired  into  and  recorded  for  the  benefit  of  the  public,  those 
who  are  empowered  to  act  in  making  such  investigations  and 
memorials  are  in  fact  the  agents  of  all  the  individuals  who  com- 
pose the  state ;  and  every  member  of  the  community  may  be  sup- 
without  bcin-;  pleaded  or  proved.  Courts  Tr.  083-085 ;  Eex  v.  Ld.  George  Gordon, 
also  take  judicial  notice  of  tlie  repeal  of  2  Doug.  5'J3,  and  note  (3);  Jones  ;;.  Kan- 
public  laws.  State  v.  O'Connor,  13  La.  dall,  Lofft,  383,  428 ;  Cowp.  17,  s.  c. 
Ann.  480.]  ^  Hex  v.  iSniith,  1  Stra.  12G. 

1  Snpm,%'^\.  *  Koot   ?'.  King,  7   Cowen,  613,   63C ; 

2  Ld.  INIelville's  case,  29  Howell's  St.     Watkins  v.  lloliuan,  16  Peters,  25. 


CHAP.  IV.]  PUBLIC   DOCUMENTS.  529 

posed  to  be  privy  to  the  iiivestigation.  On  the  ground,  therefore, 
of  the  credit  due  to  agents  so  empowered,  and  of  the  public 
nature  of  the  facts  themselves,  such  documents  arc  entitled  to  an 
extraordinary  degree  of  confidence ;  and  it  is  not  necessary  that 
they  should  be  confirmed  and  sanctioned  by  the  ordinary  tests 
of  truth.  Besides  this,  it  would  always  be  difficult,  and  often 
mipossible,  to  prove  facts  of  a  public  nature,  by  means  of  actual 
witnesses  upon  oath.^  ^V^ 

§  484.  Tliese  books,  therefore,  are  recognized  by  law,  because 
they  are  required  l:»y  law  to  be  kept,  because  the  entries  in  them        s^^ 
are  of  public  interest  and  notoriety,  and  because  they  are  made 
under  the  sanction  of  an  oath  of  office,  or  at  least  under  that  of  ^ 

official  duty.     They  belong  to  a  particular  custody,  from  which  lj 

they  are  not  usually  taken  but  by  special  authority,  granted  only  '^ 
in  cases  where  inspection  of  the  book  itself  is  necessary,  for  the  "^ 
purpose  of  identifying  the  book,  or  the  handwriting,  or  of  de- J 
termining  some  question  arising  upon  the  original  entry,  or  of 
correcting  an   error  which  has   been   duly  ascertained.      Books 
of  this  public  nature,  being  themselves  evidence,  when  produced, 
their  contents  may  be  proved  by  an  immediate  copy  duly  verified.^ 
Of  this  description  are  parish  registers ;  ^  the  books  of  the  Bank'^  ^ 
of  England,  which  contain  the  transfers  of  public  stock;*  the\^ 
transfer  books  of  the  East  India  Company ;  ^  the  rolls  of  courts 
baron ;  *^  the  books  which  contain  the  official  proceedini2;s  _of_ 
porations,  and  ^matters  respecting  their  property,  if  the  public 
large  is  concerned  wiili  it  ;'   Ixxiks  of  iissrssinrut  of  public  rates 
and  taxes ;  ^  vestry  books ;  '•*  bishops'  registers,  and  cha2)ter-house 
registers  ;  i*^  terriers  ;  ^^  the  books  of  the  post-office,  and  custom- 

1  1  Stark.  Evid.  195 ;  supra,  §  128.  case,  17   Howell's   St.  Tr.  810 ;   jMoore's 

"  Ljncli   V.  Gierke,   3   Salk.  154,  per  case,  Id.  854;  0 wings  v.  Speed,  5  Wheat. 

Holt,  C.  J.;  2  Doug.  593,  504,  note  (3).  420. 

The  handwriting  of  the  recording  or  at-         ^  Doe  v.  Seaton,  2  Ad.  &  El.  171,  178, 

testing   otficer  is,  printd  Jiicie,  presumed  per  Patteson,  J. ;  Doe  r.  Arkwright,  Id. 

genuine.     liryan  v.  Wear,  4  ilis.  106.  182  (note),  per  Dcnnian,  C.  J. ;   Hex  v. 

3  2  I'liil.  Evid.  183-18(j ;  Lewis  v.  Mar-  King,  2  T.  K.  234 ;  Konkendortfc.  Tavlor, 

shall,  5  Peters,  472,475;   1   Stark.  Evid.  4  Peters,  349, SCO;  Doe  t-.  Cartwright,'Ry. 

205.     See  Childress  v.  Cutter,  16  jMis.  24.  &  My.  62. 

*  Breton   v.   Cope,   Peake's   Cas.   30-;         ^  Rex  v.  JLartin,  2  Canipb.  100.     See, 

Marsh  v.  Collnett,  2  Esp.  055 ;  Mortimer  as  to  Church  Records,  Sawyer  v.  Baldwin, 

V.  M'Callan,  6  M.  &  W.  58.  11  Pick.  494. 

5  2  Doug.  593,  note  (3).  w  Arnold  v.  Bishop  of  Bath  and  Wells, 

6  Bull.  N.  P.  247;  Doe  v.  Askew,  10  5  Bing.  316;  Coombs  v.  Coether,  1  M.  &, 
East,  520.  Malk.  398. 

"  Warriner  v.  Giles,  2  Stra.  954;  Id.        "  Bull.  N.  P.  248;  1  Stark.  Evid.  201. 
1223,  note  (1);  Marriaije  r.  Lawrence,  3     [See /)(/)a,  §  496.] 
B.  &  Aid.  144,  per  Abbott,  C.J. ;  Gibbon's 
VOL.  1.  45 


530 


LAW   OF   EVIDENCE. 


[part   III. 


house,  and  registers  of  other  public  offices ;  ^  prison  registers ;  ^ 
enrohiient  of  deeds ;  ^  the  registers  of  births  and  of  marriages, 
made  pursuant  to  the  statutes  of  any  of  the  United  States ;  * 
the  registration  of  vessels  in  the  custom-house ;  ^  and  the  books 
of  record  of  the  transactions  of  towns,  city  councils,  and  other 
municipal  bodies.*'  In  short,  the  rule  may  be  considered  as  settled, 
that  every  document  of  a  i^uljlic  nature,  which  there  would  be  an 
inconvenience  in  removing,  and  which  the  party  has  a  right  to 
inspect,  may  be  proved  by  a  duly  authenticated  copy.'^ 
I  §  485.  It  is  deemed  essential  to  the  official  character  of  these 
books,  that  the  entries  in  them  be  made  promptly,  or  at  least 
without  such  long  delay  as  to  impair  their  crediljility,  and  that 
they  be  made  by  the  person  whose  duty  it  was  to  make  them,  and 
in  the  mode  required  by  law,  if  any  has  been  prescribed.^     When 


1  Bull.  N.  p.  249 ;  Rex  v.  Fitzgerald, 
1  Leach,  Cr.  Cas.  24 ;  Rex  v.  Rhodes,  Id. 
29 ;  Disraeli  v.  Jowett,  1  Esp.  427 ;  Bar- 
ber V.  Holmes,  3  Esp.  190;  Wallace  v. 
Cook,  5  Esp.  117 ;  Jolinson  v.  Ward,  6 
Esp.  48 ;  Tomkins  v.  Attor.-Gen.  1  Dow. 
404 ;  Rex  v.  Grimwood,  1  rrice,  369 ; 
Henry  v.  Leigh,  3  Canipb.  499 ;  United 
States  V.  Johns,  4  Dall.  412,  415. 

•^  Salte  I'.  Thomas,  3  B.  &r.  188;  Rex 
V.  Aikles,  1  Leach,  Cr.  Cas.  435. 

8  Bull.  N.  r.  229 ;  Kinnersley  v.  Orpe, 
1  Dong.  50  ;  Hastings  v.  Blue  Hill  Turnp. 
Corp.  9  Pick.  80. 

*  Milford  V.  Worcester,  7  Mass.  48; 
Commonwealth  v.  Littlejolin,  15  Mass.  163 ; 
Sumner  v.  Sebec,  3  Greenl.  223 ;  Wedge- 
wood's  case,  8  Greenl.  75 ;  Jacock  v.  Gil- 
liam, 3  Murphy,  47 ;  Mffrtin  v.  Gunby,  2 
H.  &  J.  248 ;  Jackson  v.  Boneham,  15 
Johns.  226 ;  Jackson  v.  King,  5  Cowen, 
237;  Richmond  v.  Patterson,  3  Ohio  R. 
368. 

5  United  States  v.  Johns,  5  Dall.  415; 
Colson  V.  Bonzey,  6  Greenl.  474 ;  Hacker 
V.  Young,  6  N.  Hamp.  95 ;  Coolidge  v.  N. 
York  Firemen's  Ins.  Co.  14  Johns.  308 ; 
Catlett  V.  Pacific  Ins.  Co.  1  Wend.  651. 

s  Saxton  V.  Nimms,  14  Mass.  320,  321 ; 
Thayer  v.  Stearns,  1  Pick.  309;  Taylor 
V.  Henry,  2  Pick.  401 ;  Denning  v.  Roome, 
6  Wend.  651 ;  Dudley  v.  Grayson,  6  Mon- 
roe, 259;  liLshop  v.  Cone,  3  N.  Hamp. 
513.  [The  clerk  of  a  city  or  town  is  the 
proper  certifying  officer  to "  authenticate 
copies  of  the  votes,  ordinances,  and  by- 
laws thereof;  and  such  copies  are  admis- 
sible as  priind  facie  evidence,  when  pur- 
porting to  be  duly  attested,  without  any 
verification  of  the  clerk's  signature.  Com- 
monwealth V.  Chase,  6  Cush.  248.     See 


also  People  v.  Minck,  7  Smith  (N.  Y.), 
539.] 

■^  Gresley  on  Evid.  115.  In  some  of 
the  United  States,  office-copies  are  made 
admissible  by  statute.  In  Georgia,  the 
courts  are  expressly  empowered  to  require 
tlie  production  of  the  originals,  in  their 
discretion.  Hotchk.  Dig.  p.  590.  In 
South  Carolina,  it  has  been  enacted,  that 
no  foreign  testimonial,  probate,  certificate, 
&c.,  under  the  seal  of  any  court,  notary, 
or  magistrate,  shall  be  received  in  evi- 
dence, unless  it  shall  appear  that  the  like 
evidence  from  this  state  is  receivable  in 
the  courts  of  the  foreign  state.  Statutes 
at  Large,  vol.  5,  p.  45.  [See  Pittsfield, 
&c.,  P.  R.  Co.  V.  Harrison,  16  111.  81; 
Raymond  v.  Longworth,  4  McLean,  481. 
Duly  authenticated  notarial  copies  of  in- 
struments, the  originals  of  which  the 
party  has  not  the  power  to  produce,  by 
reason  of  the  laws  of  the  country  where 
they  were  executed,  are  admissible  as 
secondary  evidence.  Bowman  v.  San- 
born, 5  Foster  (N.  H.),  87.]  [*The  official 
record  of  the  town  clerk  is  conclusive  as 
to  the  votes  of  the  town,  and  cannot  be 
contradicted  or  explained  by  oral  proof. 
The  People  v.  Zeyst,  23  N.  Y.  App.  140. 
But  maps  and  surveys  are  not  evidence  in 
themselves,  unless  from  having  acquired 
authority  by  lapse  of  time  and  acquies- 
cence.    Johnston  v.  Jones,  1  Black,  209.] 

8  Doe  V.  Bray,  8  B.  &  C.  813 ;  Walker 
V.  Wingfield,  18  Ves.  443.  A  certificate 
that  a  certain  fact  appears  of  record  .is  not 
sufficient.  The  officer  must  certify  a 
transcript  of  the  entire  record  relating  to 
the  matter.  Owen  v.  Boyle,  3  Shepl. 
147.  And  this  is  sufficient.  Farr  v. 
Swan,  2  Barr,  245. 


CHAP.  IV.] 


PUBLIC   DOCUMENTS. 


.81 


tjy.  illllll^,s  '^■■'■"^'%,aa i!iX^Llll<i!j,|£fi^f  ^^^^y  arc  received  as  evidence, 
Avitliout  rurlher  attestation.^  But  tliey_  must  be  accomijauied  by 
jirouf  that  they  come  from  the  ^roi^er  re^jositori//  AVhcrc  the 
proofTs  by  a  copy,  an  examined  copy,  duly  made  and  sworn  to  l>y 
any  competent  witness,  is  always  admissible.^  Whether  a  cojji/, 
certified  by  the  officer  having  legal  custody  of  the  book  or  docu- 
ment, he  not  being  specially  appointed  by  law  to  furnish  copies, 
is  admissible,  has  been  doubted ;  but  though  there  are  decisions 
'against  the  admissibility,  yet  the  weight  of  authority  seems  to 
have  established  the  rule,  that  a  copy  given  by  a  public  officer, 
whose  duty  it  is  to  keep  the  original,  ought  to  be  received  in 
evidence.^ 


1  1  Stark.  Evid.  202;  Atkins  v.  Hut- 
ton,  2  Anstr.  387  ;  Armstrong  v.  Hewett, 
4  Price,  21G ;  Pulley  v.  Hilton,  12  Price, 
C25 ;  Swinnerton  v.  IMarquis  of  Stafford, 
o  Taunt.  Ul  ;  I?aillie  r.  Jackson,  17  Eng. 
L.  &  Eq.  U.  l:jl.  [United  States  v.  Cas- 
tro, 24  How.  346.]  See  supra,  §  142,  as 
to  tiie  nature  of  tiie  repository  required. 
'■^  [\VhiteIiou.ser.Bicktbrd,yFoster,471.'| 
•^  United  States  r.  Perclienian,  7  Pe- 
ters, .51,  8o  [A.  1).  1833],  per  totani 
Curiam  ;  Uakes  u.  Hill,  14  Pick.  442,  448  ; 
Abbott  on  Siiipi)ing,  p.  63,  note  1  (Story's 
edit.)  ;  United  States  v.  Johns,  4  Dall. 
412,  415;  Judice  v.  Chretien,  3  Rob. 
Louis.  K.  15  ;  Wells  v.  Compton"  Td.  171 ; 
[Warner  v.  Hardy,  6  Md.  525.]  In  ac- 
cordance with  the  principle  of  this  rule 
is  the  statute  of  the  United  States  of 
March  27,  1804  (3  LL.  U.  S.  021,  ch.  409 
[56],  Bioren's  edit.);  [2  U.S.  Stats,  at 
Large  (L.  &  B.'s  edition),  298] ;  by  which 
it  is  enacted,  that  "  all  records  and  exem- 
plitications  of  office-books,  winch  are  or 
may  be  kept  in  any  public  office  of  any 
state,  not  appertaining  to  a  court,  shall  be 
proved  or  admitted  in  any  other  court  or 
office  in  any  other  state,  by  the  attesta- 
tion of  the  keeper  of  the  said  records  or 
books,  and  the  seal  of  his  office  thereunto 
annexed,  if  there  bo  a  seal,  togetlier  with 
a  certificate  of  the  presiding  justice  of  tiie 
court  of  tlie  county  or  district,  as  the  case 
may  be,  in  which  such  office  is  or  may  be 
kej>t ;  or  of  tlie  governor,  the  secretary  of 
state,  tiie  chancellor,  or  the  keeper  of  the 
great  seal  of  the  state,  that  the  said  attest- 
ation is  in  due  form,  aijd  by  the  proper 
otKcer ;  and  the  said  certificate,  if  given 
by  tiie  presiding  justice  of  a  court,  siiall 
be  further  authenticated  by  the  clerk  or 
prothonotary  of  tiie  said  court,  wlio  sliall 
certity,  under  iiis  hand  and  tlie  seal  of  liis 
office,  that  tlie  said  presiding  jii>tice  is 
duly  commissioued  and  qualified ;    or  if 


the  said  certificate  bo  given  by  the  gov- 
ernor, the  secretary  of  state,  the  chan- 
cellor, or  keeper  of  the  great  seal,  it  shall 
Ije  under  the  great  seal  of  the  state  in 
which  the  said  certificate  is  made.  And 
the  said  records  and  exempUfications, 
autlienticated  as  aforesaid,  shall  have 
such  faith  and  credit  given  to  them  in 
every  court  and  office  within  the  United 
States,  as  they  have  by  law  or  usage  in 
tlie  courts  or  offices  of  the  state  from 
wlience  the  same  are  or  shall  be  taken." 
By  another  section  this  provision  is  ex- 
tended to  the  records  and  public  books, 
&c.,  of  all  the  territories  of  the  United 
States.  The  earlier  American  author- 
ities, opposed  to  the  rule  in  the  text,  are 
in  accordance  with  the  English  rule. 
2  Phil.  Evid.  130-134.  Where  the  law 
does  not  require  or  authorize  an  instru- 
ment or  matter  to  be  recorded,  a  copy  of 
the  record  of  it  is  not  admissible  in  evi- 
dence. Fitler  v.  Shotwell,  7  Watts  & 
Serg.  14 ;  Brown  v.  Hicks,  1  Pike,  232 ; 
Haile  v.  Palmer,  5  Mis.  403.  [See  also 
Kunk  c.  Ten  Eyck,  4  Zabr.  (N.J.)  756; 
State  V.  Cake,  lb.  516.]  [*Copies  of  deeds 
from  the  authorized  registry,  proof  of 
the  originals  as  well  as  of  tlie  registry. 
Curry  r.  Baymond,  28  Penn.  St.  144.  See 
Morton  r.  Webster,  2  Allen,  352.  But 
whore  tiic  party  is  entitled  to  the  custody 
of  the  original'deed,  it  must  be  produced, 
or  its  absence  accounted  for.  Williams  v. 
Wetlierbee,  2  Aikens,  329 ;  Ord  v.  Mc- 
lue.  5  Cal.  515.  And  where  the  deed  is 
found  duly  engrossed  upon  the  registry-, 
a  copy  is  good  evidence  of  the  deed,  al- 
though  the  record  is  not  certified  by  the 
proper  recording  officer.  Booge  c.  Par- 
sons, 2  Vt.  456.  But  the  certificate  of  a 
rei'ording  officer  that  a  record  does  not 
exist  cannot  be  received  as  evidence. 
Stoner  v.  Ellis,  6  lud.  152 ;  Cross  c.  Mill 
Co.  17  Id.  54.] 


532 


LAW   OF   EVIDENCE. 


[part    III. 


§  486.  Ill  regard  to  foreign  laws,  the  established  doctrine  now 
is,  that  no  court  takes  judicial  notice  of  the  laws  of  a  foreign 
country,  but  they  must  be  proved  as  facts.  And  the  better  opinion 
seems  to  be,  that  this  proof  must  be  made  to  the  court,  rather  than 
to  the  jury.  "  For,"  observes  Mr.  Justice  Story,  "  all  matters  of 
law  are  properly  referable  to  the  court,  and  the  object  of  the  proof 
of  foreign  laws  is  to  enable  the  court  to  instruct  the  jury  what,  in 
point  of  law,  is  the  result  of  the  foreign  law  to  be  applied  to  the 
matters  in  controversy  before  them.  The  court  are,  therefore,  to 
decide  what  is  the  proper  evidence  of  the  laws  of  a  foreign  coun- 
try ;  and  when  evidence  is  given  of  those  laws,  the  court  are  to 
judge  of  their  ap}>licability,  when  proved,  to  the  case  in  hand."  ^ 
[  *  We  have  ventured  to  question  the  soundness  of  the  proposition, 
that  proof  of  foreign  law  is  in  all  cases  addressed  to  the  court.^] 

§  487.  "  Generally  speaking,  authenticated  copies  of  the  written 
laws,  or  of  other  public  instruments  of  a  foreign  government,  are 
expected  to  be  produced.  For  it  is  not  to  be  presumed,  that  any 
civilized  nation  will  refuse  to  give  such  copies,  duly  authenticated, 
which  are  usual  and  necessary,  for  the  purpose  of  administering 
justice  in  other  countries.  It  cannot  be  presumed,  that  an  appli- 
cation to  a  foreign  government  to  authenticate  its  own  edict  or  law 
will  be  refused ;  but  the  fact  of  such  a  refusal  must,  if  relied  on,  be 
proved.  But  if  such  refusal  is  proved,  then  inferior  proofs  may 
be  admissible.^     Where  our  own  government  has  promulgated 


1  Story  on  Confl.  of  Laws,  §  638,  and 
cases  there  cited ;  [Pickard  v.  Bailey,  6 
Foster,  152.] 

2  [  *  Redf.  Ed.  Story,  Confl.  of  Laws, 
§  688a  ;  Wilde,  J.,  in  Holman  v.  King,  7 
Met.  384,  388.  In  a  recent  English  case, 
RrCormick  v.  Garnett,  5  DeG.  M.  &  G. 
278,  it  was  decided,  that  a  question  of 
foreign  law,  being  one  of  fact,  must  be  de- 
cided in  each  cause  upon  evidence  adduced 
in  that  particular  cause,  and  not  by  a  de- 
cision, or  upon  evidence  adduced,  in  an- 
other cause,  although  similarly  circum- 
stanced.] 

3  Church  v.  Hubbart,  2  Cranch,  237, 
238.  It  is  now  settled  in  England,  upon 
great  consideration,  that  a  foreign  written 
law  may  be  proved  by  parol  evidence  of  a 
witness  learned  in  the  law  of  that  country  ; 
without  first  attempting  to  obtain  a  copy 
bf  the  law  itself  liaron  de  Bode  v.  Ite- 
ginani,  10  Jur.  217.  In  tliis  case,  a  learned 
Erencli  advcjcate  stated,  on  his  cross- 
examination,  that  the  feudal  law,  which 
had  prevailed  in  Alsace,  was  abolished  by 


a  general  decree  of  the  National  Assem- 
bly of  Erance,  on  the  4th  of  August,  1789. 
Being  asked  whether  he  had  read  that 
decree  in  the  books  of  the  law,  in  the 
course  of  his  study  of  the  law,  he  rejilied 
that  he  had ;  and  that  it  was  part  of  the 
history  of  the  law,  which  he  learnt  when 
studying  the  law.  He  was  then  asked  as 
to  the  contents  of  that  decree  ;  and  the 
admissibility  of  this  question  was  the  point 
in  judgment.  On  this  point.  Lord  Den- 
man,  C.  J.,  said :  "  The  objection  to  the 
question,  in  whatever  mode  put,  is,  that  it 
asks  the  witness  to  give  the  contents  of  a 
written  instrument,  the  decree  of  1789, 
contrar3'  to  a  general  rule,  that  such  evi- 
dence cannot  be  given  without  the  i)roduc- 
tion  of  the  instrument,  or  accounting  for 
it.  In  my  opinion,  however,  that  ques- 
tion is  within  another  general  rule,  that 
the  opinion  of  skilful  and  scientific  x^ersons 
is  to  be  received  on  subjects  with  which 
they  are  conversant.  I  think  that  credit 
must  be  given  to  the  opinion  of  legal  men, 
who  are  bound  to  know  the  law  of  the 


CHAP. 


IV.] 


PUBLIC   DOCUMENTS. 


533 


any  foreign  la\v,  or  ordiuanec  of  a  pu]>lic  nature,  as  authentic, 
that  may,  of  itself,  bo  sufficient  evidence  of  the  actual  existence 
and  terms  of  such  law  or  ordinance."^ 

§  488.  "  In  general,  foreign  laws  are  required  to  be  verified  Ijy 
tlie  sanction  of  an  oath,  unless  they  can  be  verified  by  some  high 
authority,  such  as  the  law  respects,  not  less  than  it  respects  the 
oath  of  an  individual.^  The  usual  mode  of  authenticating  foreign 
laws  (as  it  is  of  authenticating  foreign  judgments),  is   by  an 


country  in  whicli  they  practice,  and  that 
we  must  take  from  them  the  account  of  it, 
wliether  it  be  the  unwritten  law,  wliich 
they  may  collect  from  practice,  or  the 
written  laws,  which  they  arc  also  bound 
to  know.  I  aiiprehend  that  the  evidence 
sought  for  woidd  not  set  forth  generally 
the  recollection  of  the  witness  of  the  con- 
tents of  the  instrument,  but  his  opinion  as 
to  the  ettect  of  the  jtarticular  law.  The 
instrument  itself  might  frequently  mis- 
lea<l,  and  it  might  be  necessary  that  the 
knowledge  of  the  practitioner  should  be 
called  in,  to  show  that  the  sense  in  which 
the  instrument  would  be  naturally  con- 
strued by  a  foreigner  is  not  its  true  legal 
sense.  It  appears  to  me  that  the  distinc- 
tion between  this  decree  ami  treaties,  ma- 
norial customs,  or  acts  of  common  council, 
is,  that,  with  regard  to  them,  there  is  no 
profession  of  men  whose  duty  it  is  to  make 
tiiem  their  study,  and  that  there  is,  there- 
fore, no  person  to  wiiom  we  could  prop- 
erly resort,  as  skilfully  conversant  with 
them.  The  cases  which  have  been  re- 
ferred to  excite  much  less  doubt  in  my 
mind  than  that  which  I  know  to  be  enter- 
tained by  one  of  my  learned  brothers,  to 
whose  opinion  we  arc  in  the  habit  of  pay- 
ing more  respect  than  to  many  of  those 
cases  which  are  most  familiarly  quoted  in 
Westminster  Hall."  He  then  cited  and 
commented  on  the  cases  of  Boehtlinck  v. 
Schneider,  3  Ksp.  58 ;  Clegg  v.  Levy,  3 
Camp.  166  ;  Miller  v.  Heinrick,  4  Campb. 
155;  Lacon  v.  Iliggins,  3  Stark.  178; 
Gen.  Picton's  case,  3  Howell,  St.  Tr.  4'Jl ; 
and  iliddieton  v.  Janverin,  '2  Hagg.  Cons. 
1\.  437  ;  and  concluded  as  follows  :  "  But 
I  look  to  the  imi)ortance  of  this  question 
in  a  more  extensive  point  of  view.  Books 
of  authority  must  certainly  be  resorted  to, 
upon  questions  of  foreign  law.  Pothier, 
for  instance,  states  the  law  of  France,  and 
he  states  it  as  arisingoutof  an  ordoiuiance 
made  in  such  a  year,  and  he  gives  his 
account  of  that  ordonnance ;  and  are  we 
to  say  that  that  would  not  be  taken  as  evi- 
dence of  the  law  of  France,  because  it  is 
an  account  of  the  contents  of  a  written 
document?     Suppose  a  question  to  arise 


suddenly  in  one  of  our  courts  upon  the 
state  of  the  English  law,  could  a  state- 
ment in  Blackstone's  Commentaries,  as  to 
what  the  law  is  on  the  subject,  and  when 
it  was  altered  to  what  it  now  is,  be  re- 
fused ?  And  it  seems  to  me  tliat  the  cir- 
cumstance of  the  question  having  refe- 
rence to  the  period  at  which  a  statute 
passed,  makes  no  difference.  I  attach  the 
same  credit  to  the  witness  giving  his  ac- 
count of  a  branch  of  the  French  law,  as  I 
should  to  a  book  which  he  might  accredit 
as  a  book  of  autliority  upon  tlie  law  of 
France.  I  find  no  authority  directly  op- 
posed to  the  admissibility  of  this  evidence, 
except  some  expressions  much  stronger 
than  the  cases  warranted  or  required  ;  and 

1  finil  some,  decisions  which  go  the  whole 
length  in  tavor  of  its  admissibility ;  for  I 
see  no  distinction  between  absolute  proof 
by  a  direct  copy  of  the  law  itself,  and  the 
evidence  which  is  now  tendered ;  and  I 
think  that  the  general  principle  to  which  I 
have  referred  establishes  the  admissibilitv 
of  it."  See  10  Jur.  218,  219 ;  8  Ad.  & 
El.  208,  s.  c.  Williams,  J.,  and  Coleridge, 
J.,  concurred  in  this  opinion.  Patteson, 
J.,  disseiitioite.    See  also  Cocks  r.  Purdav, 

2  C.  &  K.  209. 

1  Story  on  Confi.  of  Laws,  §  640 ;  Tal- 
bot V.  Seeman,  1  Cranch,  38.  The  acts 
of  state  of  a  foreign  government  can  only 
be  proved  by  copies  of  sueh  acts,  properly 
autiienticated.  Kichardson  v.  Anderson, 
1  Campb.  65;  note  (a). 

-  Church  V.  Hubbart,  2  Cranch,  237 ; 
Brackett  r.  Norton,  4  Conn.  517 ;  Hemp- 
stead V.  Keed,  6  Conn.  480 ;  Dyer  r. 
Smith,  12  Conn.  384.  But  the  court  may 
proceed  on  its  own  knowledge  of  foreign 
laws,  without  the  aid  of  otlier  proof ;  and 
ts. judgment  will  not  be  reversed  for  that 
.•ause,  unless  it  should  appear  that  the 
;ourt  was  mistaken  as  to  those  laws.  The 
State  v.  Rood,  12  Verm.  396.  [Proof  of 
the  written  law  of  a  foreign  coimtry  may 
be  made  by  some  copy  of  the  law  whicli 
the  witness  can  swear  was  recognized  as 
authoritative  in  the  foreign  country,  and 
which  was  in  force  at  the  lime.  Siiauld- 
ing  r.  Vincent,  24  Vt.  501. J 


45* 


534 


LAW   OP   EVIDENCE. 


[part   III. 


exemplification  of  a  copy,  under  the  great  seal  of  a  state ;  or  l)v  a 
copy  i)rovcd  to  be  a  true  copy,  Ijy  a  witness  who  has  examined  and 
compared  it  with  the  original ;  or  by  the  certificate  of  an  othcer 
properly  authorized  l)y  law  to  give  the  copy  ;  wliich  certificate 
must  itself  also  be  duly  authenticated.^  But  foreign  unwritten 
laws,  customs,  and  usages  may  be  proved,  and  indeed  must  ordi- 
narily be  proved,  by  parol  evidence.  The  usual  course  is  to  make 
such  proof  by  the  testimony  of  competent  witnesses,  instructed  in 
the  laws,  customs,  and  usages,  under  oath.^  Sometimes,  however, 
certificates  of  persons  in  high  authority  have  been  allowed  as  evi- 
dence, without  other  proof."  ^ 


1  Church  V.  Hubbart,  2  Cranch,  238 ; 
Packard  v.  Hill,  2  Weud.  411 ;  Liiicohi  v. 
Battelle,  6  Wend.  475. 

-  Church  V.  Hubbart,  2  Cranch,  237 ; 
Dalrymple  v.  Dah-ymi)le,  2  Hagg.  App'x, 
pp.  15-144 ;  Brush  v.  Wilkins,  4  Johns.  Ch. 
520 ;  Mostyn  v.  Fabrigas,  Cowp.  174.  It 
is  not  necessary  that  the  witness  should 
be  of  the  legal  profession.  Kegina  v. 
Dent,  1  Car.  &  Kirw.  97.  But  whether  a 
woman  is  admissible  as  peritus,  qwere.  Ile- 
gina  V.  Povev,  14  Eng.  Law  &  Eq.  R.  549  ; 
17  Jur.  U'J.'  And  see  Wilcocks  '_•.  Phil- 
lips, Wallace,  Jr.  47.  In  Mic/ii;/an,  the 
unwritten  law  of  foreign  states  may  be 
proved  by  books  of  reports  of  cases  ad- 
judged in  their  courts.  Rev.  Stat.  1846, 
cli.  i02,  §  79.  So,  in  Connecticut ;  Rev. 
Stat.  1849,  tit.  1,  §  132.  And  in  MassacJm- 
stlts ;  Rev.  Stat.  1836,  ch.  94,  §  60.  And 
in  Maine;  Rev.  Stat.  1840,  ch.  133,  §  48. 
And  in  Alabama;  Inge  ?'.  Murphy,  10  Ala. 
R.  885.  [Although  a  point  of  foreign  law 
has  been  proved  in  England,  and  acted 
iipon  in  reported  cases,  the  coin-t  will  not 
act  upon  such  decisions  without  the  law 
being  proved  in  each  case  as  it  arises.  M'- 
Cormickv.  Garnett,  27Eng.Law  &Eq.339.] 

3  Story  on  Confli.  of  Laws,  §§  641, 
642;  Id.  §  629-640.  In  re  Dormay,  3 
Hagg.  Eccl.  R.  767,  769 ;  Rex  v.  Picton, 
30  Howell's  State  Trials,  515-673 ;  The 
Diana,  1  Dods.  95,  101,  102.  A  copy  of 
the  code  of  laws  of  a  foreign  nation, 
printed  by  order  of  the  foreign  govern- 
nicnt,  it  seems,  is  not  admissible  evidence 
of  those  laws ;  but  they  must  be  proved, 
as  stated  in  the  text.  Chanoine  v.  Fowler, 
3  Wend.  173;  Hill  r.  Packard,  5  Wend. 
375,  384,  389.  But  see  United  States  v. 
Glass  Ware,  4  Law  Reporter,  36,  where 
Betts,  J.,  held  the  contrary ;  the  print- 
ed book  having  been  purchased  of  the 
Queen's  printer.  See  also  Farmers  and 
Mechanics'  Bank  v.  Ward,  Id.  37,  S.  P. 
In  regard  to  the  effect  of  foreign  laics,  it  is 


generally  agreed  that  they  are  to  govern 
everywhere,  so  far  as  may  concern  the 
validity  and  interi)retation  of  all  contracts 
made  under  oi'  with  respect  to  them ; 
where  the  contract  is  not  contrary  to  the 
laws  or  policy  of  the  country  in  whicli 
the  remedy  is  sought.  An  exccjitinn  has 
seen  admitted  in  the  case  of  foreign  rere- 
lue  /«(rA;.  of  which,  it  is  said,  the  courts 
ivill  not  take  notice,  and  wliich  will  not 
le  allowed  to  invalidate  a  contract  made 
for  the  express  purpose  of  violating  them. 
This  exception  has  obtained  place  ui)on 
the  supposed  authority  of  Lord  Hard- 
wicke,  in  Boucher  v.  Lawson,  Cas.  Temp. 
Hardw.  89,  194,  and  of  Lord  Mansfield,  in 
Planclie  v.  Fletcher,  1  Doug.  252.  But  in 
the  foriner  of  these  cases,  which  was  that 
of  a  shipment  of  gold  in  Portugal,  to  be 
delivered  in  London,  though  the  exporta- 
tion of  gold  was  forbidden  by  the  laws  of 
Portugal,  the  judgment  was  right  on  two 
grounds :  first,  because  the  foreign  law 
was  contrary  to  the  policy  and  interest  of 
England,  wliere  Inillion  was  very  much 
needed  at  that  time  ;  and,  secondly,  be- 
cause tlie  contract  was  to  be  jiertbrmed  in 
England ;  and  the  rule  is,  that  the  law  of 
the  place,  of  performance  is  to  govern.  The 
latter  of  these  cases  was  an  action  on  a 
policy  of  insurance,  on  a  voj'age  to  Nantz, 
withliberty  to  touch  at  Ostend ;  the  ves- 
sel being  a  Swedish  bottom,  and  the  voy- 
age being  plainly  intended  to  introduce 
into  France  English  goods,  on  which  du- 
ties were  high,  as  Dutch  goods,  on  which 
much  lower  duties  were  charged.  Here, 
too,  the  French  law  of  high  countervail- 
ing duties  was  contrary  to  British  interest 
and  policy;  and,  moreover,  the  Fiencli 
ministry  were  understood  to  connive  at 
this  course  of  trade,  the  supply  of  such 
goods  being  necessary  for  French  con- 
sumption. Both  tliese  cases,  therefore, 
may  well  stand  on  the  ground  of  the  ad- 
mitted qualification  of  the  general  rule; 


1 


CHAP.  IV.]  PUBLIC   DOCUMENTS.  535 

[*  §  488rt.  The  question,  liow  far  the  court  can  act  upon  its  own 
knowledge  of  the  law  of  a  foreign  state,  seems  not  entirely  well 
settled.  It  would  seem  upon  principle,  that,  as  this  is  matter 
of  fact,  and,  in  case  of  dispute,  to  be  ultimately  determined  Ijy  the 
jury,  or  the  triers  of  fact,  that  the  personal  knowledge  of  the  judge 
could  not  be  regarded  as  proof,  except  as  to  those  matters  of  which 
the  court  will  take  judicial  notice,  or  assume  by  way  of  presump- 
tion.i  In  many  cases  it  has  been  said,  that,  in  the  absence  of  all 
}iroof,  the  court  will  presume  the  foreign  law  is  the  same  as  that 
of  the  forum.2  This  rule  may  be  a  safe  one  to  act  upon  within 
reasonable  limits,  as  for  instance,  as  to  contracts  relating  to  per- 
sonal estate,  and  especially  as  to  commercial  matters ;  and  also, 
that,  where  the  common  law  is  known  to  prevail,  it  is  construed 
the  same  as  where  the  action  is  tried.  In  a  recent  case^  it  is  said,' 
"  In  the  absence  of  all  proof,  courts  assume  certain  general  prin- 
ciples of  law,  as  existing  in  all  Christian  states  ;  as,  that  contracts 
are  of  binding  obligation,  and  that  personal  injuries  are  actionable ; 
that  flagrant  violations  of  the  fundamental  principles  of  moral 
obligation,  such  as  theft  and  murder,  are  regarded  as  crimes  ;  and 
that  to  accuse  one  of  these  crimes,  thus  exposing  him  to  prose- 
cution, ignominy,  and  disgrace,  is  an  actionable  slander."  But  no 
such  presumption  will  apply  to  statute  law,  or  where  it  would  ope- 
rate to  produce  a  forfeiture,  by  rendering  a  contract  void.^  The 
courts  take  judicial  notice  of  differences  of  time  in  different  longi- 
tudes.^3 

§  489.  The  relations  of  the  United  States  to  each  other,  in  regard 
to  all  matters  not  surrendered  to  the  general  government  by  the 

and  the  brief  general  observations  of  those  b.  2,  ch.  5,  §  64;  Id.  ch.  G,  §  72;  Pothier 

learned  judp,es,  if  correctly  rcportcil,  may  on  Assurance,   n.  58 ;    Marshall   on  Ins. 

be  regarded  nsoliiter  dicta.     But  it  should  pp.  5'J-61,  2d  edit.  ;  1  Chitty  on  Comm.  & 

be  rememberecT,  tliat  the  language  of  tlie  INIanuf  pp.  83,  Bi ;   3  Kent,  Comm.  206^ 

learned  judges  seems  to  import  nothing  207;  Story,  Confl.  JLaws,  ^  "ioY  ;  btory  on 

more  than  that  courts  will  not  take  notice  Bills,  §   I'SG ;    Story  on  Agency,  §§  197, 

of  foreign  revenue  laws ;  and  sucli  seems  343,  note,  2d  edit. 

to  have  been  the  view  of  Lord  Denman,  ^  [  *  Wheeler   v.  Webster,    1   E.    D. 

in  the  recent  case  of  Spence  r.  Chodwick,  Smith,  1. 

11  Jur.  874,  wlurt'  ho  said  :  "  We  arc  noi^         -  Kape  v.  Ileaton,  9  Wis.  328 ;  Green  v. 

bomd  to  tula  notice  nf  tlie  revenue  laws  of  Eugely,  2:!  Texas,  539;  Cox  ;•.  ^Morrow, 

aTOTei^LCouulry  ;  but  if  wejire  injornud.  14  Ark.  GOO  ;  Warren  v.  Lusk,  16  Mo.  102; 

of  tJiem,  tliat-is  imotUet^t^e?'    And  see  Sharp  v.  Sharp,  35  Ala.  574. 

10  Ad.  &  El.  517,  N.  s.     The  exception         ^  Langdon  v.  Young,  33  Vt.  136.     See 

alluded   to   was    tacitly   disapproved    by  also  Wrigiit  i'.  Delatield,  23  Barb.  498; 

Lord  Kenyon,   in   Waymell   v.   Kccd,  5  Thompson  r.  Monrow,  2  Cal.  99. 

T.  E.  599,  and  is  explicitly  condemned,  *  Cutler  r.  Wright,  22  N.Y.  App.  472; 

as  not  founded  in  legal  or  moral  principle.  Smith  v.  Whitaker,  23  111.  3G7. 

by  the  best  modern  jurists.     See  Vattel,         ^  Curtis  v.  March,  4  Jur.  n.  s.  1112.] 


536  LAW   OF   EVIDENCE.  [PART  III. 

national  constitution,  arc  those  o^  foreign  states  in  close  friendsldp, 
each  being  sovereign  and  independent.^  Upon  strict  principles 
of  evidence,  therefore,  the  laws  and  public  documents  of  one 
state  can  be  proved  in  the  courts  of  another,  only  as  other  for- 
eign laws.  And,  accordingly,  in  some  of  the  states,  such  proof 
jhas  been  required.^  But  the  courts  of  other  states,  and  the  Su- 
Ipreme  Court  of  the  United  States,  bchig  of  opinion  that  the 
connection,  intercourse,  and  constitutional  ties  which  bind  together 
these  several  states,  require  some  relaxation  of  the  strictness  of 
this  rule,  have  accordingly  held  that  a  printed  volume  purport- 
ing on  the  face  of  it  to  contain  the  laws  of  a  sister  state,  is  admis- 
sible as  primd  fade  evidence,  to  prove  the  statute  laws  of  that 
state.^  The  act  of  congress^  respecting  the  exemplification  of 
public  office-books,  is  not  understood  to  exclude  any  other  modes 
of  authentication,  which  the  courts  may  deem  it  proper  to  admit.^ 
And  in  regard  to  the  laws  of  the  states,  congress  has  provided,^ 
under  the  power  vested  for  that  purpose  by  the  constitution,  that 
the  acts  of  the  legislatures  of  the  several  states  shall  be  authen- 
ticated, by  having  the  seal  of  their  respective  states  affixed 
thereto ;  but  this  method,  as  in  the  case  of  public  books  just  men- 
tioned, is  not  regarded  as  exclusive  of  any  other  which  the  states 
jmay  respectively  adopt.^     Under  this  statute,  it  is  held,  that  the 

1  Infra,  §  504.  Massachusetts,    Rev.    Stat.   1836,    eh.   94, 

'^  B'rackett  r.  Norton,  4  Conn.  517,  521 ;  §   59;    New   York,   Stat.   1848,   ch.  312; 

Hempstead  v.  Reed,  6  Conn.  480 ;  Pack-  Florida,  Thomps.  Dig.  p.  342 ;    Kean  v. 

ard  i;.  Hill,  2  Wend.  411.  Rice,    12  S.  &  R.  203;   North    Carolina, 


^  Young  V.  Bank  of  Alexandria,  4 
Cranch,  384,  388;  Thomson  v.  Musser, 
1  Dall.  458,  463 ;  Biddis  v.  James,  0  Binn. 
321,  327  ;  Muller  v.  Morris,  2  Barr,  R.  85 ; 
Raynham  v.   Canton,  3  Rick.  293,  290; 


Rev.  Stat.  1837,  ch.  44,  §  4.  Tlie  com- 
mon law  of  a  sister  state  ma}'  be  shown 
b}'  the  books  of  reports  of  adjudge<l  eases, 
accredited  in  tliat  state.  Inge  v.  Murpliy, 
10  Ala.  R.  885.     [A  book  purporting  to 


Kean  v.  Rice,  12  S.  &  R.  203 ;  The  State  contain  the  laws  of  another  state  is  not 

V.  Stade,  1  D.  Chipm.  303;  Comparet  v.  admissible  in  evidence  in  Texas,  unless 

Jernegan,  5  Blackf.  375 ;  Taylor  v.  Bank  such  book  also  purport  to  have  been  pub- 

of  Illinois,  7  Monroe,  585 ;  Taylor  v.  Bank  lished   by   the   authority   of   such    other 

of  Alexandria,  5  Leigh,  471;    Clarke  v.  state.     Martin  i'.  Payne,  11  Texas,  292. 

Bank  of  Mississippi,  5  Kng.  516  ;  Allen  v.  AnA  if  a  volume  of  laws  contains  on  its 

Watson,  2  Hill,  319;   Hale  w.  Rost,  Pen-  title-page  the  words  "By  autliority,"  it 

nington,  R.  i)91 ;  [Emery  v.  Berry,  8  Fos-  thereby  purports  to  have  been  published 

ter,  473.]      But  see  Van  Buskirk  v.  ]Mu-  by  the  authority  of  the  state.     Merrifield 

lock,  3  lliirrison,  R.  185,  contra.     In  some  v.  Bobbins,  8  (xray,  150.] 
states,  the  rule  stated  in  the  text  has  been         ■•  Stat.   March  27,   1804,  cited  supra, 

expressly  enacted.     See  Conmctlcut,  Rev.  §  485. 

Stat.  1849,  tit.  1,  §  131 ;  Mlchlr;an,  Rev.         ^  See  cases  cited  supra,  note  (2). 
Stat.    1846,    ch.    102,   §  78 ;    Mississippi,         o  st^t.  jyi^y  26,   1790,  1  LL.  U.  S.  ch. 

Hutcliins.  Dig.  1848,  ch.  60,  art.  10;  Mis-  38  [11],  p.  102  (Bioren's  edit.);    [1  U.S. 

soiiri.  Rev.  Stat.   1845,  eh.  59,  §§  4,  5,  6  ;  Stilt,  at  Large  (L.  &  B.'s  edition),  122.] 
Wisconsin,  Rev.  Stat.  1849,  ch."98,  §  54;  "^  Lothrop  v.  Blake,  3  Barr,  483. 

Maine,  Rev.  Stat.  1840,  ch.   133,   §  47; 


CHAP.  IV.]  PUBLIC   DOCUMENTS.  537 

seal  of  the  state  is  a  sufficient  authentication,  without  tlie  at- 
testation of  any  officer,  or  any  otlicr  proof;  and  it  will  be 
presumed  primd  facie,  that  the  seal  was  affixed  hy  the  proper 
officer.^ 

§  490.  The  reciprocal  relations  between  the  national  government 
and  the  several  states,  comprising  the  United  States,  are  not  foreign, 
but  domestic.  Hence,  the  courts  of  the  United  States  take  judi- 
cial notice  of  all  the  public  laws  of  the  resi)cctive  states,  whenever 
tlicy  arc  cidlcd  ui)on  to  consider  and  apply  them.  And,  in  like 
manner,  the  courts  of  the  several  states  take  judicial  notice  of  all 
public  acts  of  congress,  including  those  which  relate  exclusively 
to  the  District  of  Columbia,  without  any  formal  proof.^  But  pri- 
vate statutes  must  be  proved  in  the  ordinary  mode.^ 

§  491.  We  are  next  to  consider  the  admissibility  and  effect  of  the 
pid)lie  documents  we  have  been  speaking  of,  as  instruments  of  evi- 
dence. And  here  it  may  be  generally  observed,  that  to  render 
such  documents,  when  properly  authenticated,  admissible  in  evi- 
dence, their  contents  must  be  pertinent  to  the  issue.  It  is  also 
necessary  that  the  document  be  made  by  the  person  whose  duty  it 
was  to  make  it,  and  that  the  matter  it  contains  be  such  as  belonged 
to  his  province,  or  came  within  his  official  cognizance  and  observa- 
tion. Documents  having  these  requisites  are,  in  general,  admissi- 
ble to  prove,  either  primd  facie  or  conclusively,  the  facts  they 
recite.  Thus,  where  certain  piihlic  statutes  recited  that  great  out- 
rages had  been  committed  in  a  certain  part  of  the  country,  and  a 
public  proclamation  was  issued,  with  similar  recitals,  and  offering 
a  reward  for  the  discovery  and  conviction  of  the  perpetrators, 
these  were  held  admissible  and  sufficient  evidence  of  the  existence 
of  those  outrages,  to  support  the  averments  to  that  effect,  in  an 
information  for  a  libel  on  the  government  in  relation  to  them."^ 
So,  a  recital  of  a  state  of  war,  in  the  preamble  of  a  public  statute, 
is  good  evi'dence  of  its  existence,  and  it  will  be  taken  notice 
of  without  proof;  and  this,  whether  the  nation  be  or  be  not 
a  party  to  the  war.^     So,  also,  legislative  resolutions  are  evidence 

1  United  States  v.  Amedy,  11  Wheat,  v.  Vattier,  5  Peters,  308;  Young  v.  Bank 

392;  United  States  v.  Johns,  4  Dall.  412;  of  Alexandria,  4  Cranch,  384,  388;  Canal 

The  State  v.  Carr,  5  N.  Hamp.  3G7.     [It  Co.  v.  Railroad  Co.  4  G.  &  J.  1,  63. 
must  be  tlie  seal  of  the  state ;  the  seal  of         ^  Leland  v.  Wilkinson,  6  Peters,  317. 
the  Secretary  of  State  is  not  sufficient,  as         *  Kex  v.  Sutton,  4  jM.  &  S.  532. 
it  cannot  be  considered  tlie  seal  of  the         ^  Kex  v.  De  Berenser,  3  M.  &  S.  67, 

state.     Sisk  v.  Woodruff",  15  111.  15.]  69.     See  also  Brazen  Nose  College  v.  Bp. 

•^  Owens  V.  Hull,  9  Peters,  607  ;  Hinde  of  Salisbury,  4  Taunt.  831. 


538  LAW   OF   EVIDENCE.  [PART   III. 

of  the  public  matters  which  they  recite.^  The  journals,  also,  of 
either  house,  are  the  proper  evidence  of  the  action  of  that  house, 
upon  all  matters  before  it.^  The  dijylomatic  correspondence,  com- 
municated by  the  President  to  congress,  is  sufficient  evidence  of 
the  acts  of  foreign  governments  and  functionaries  therein  recited."^ 
A  foreign  declaration  of  war  is  sufficient  proof  of  the  day  when  the 
state  of  war  commenced."*  Certified  copies,  under  the  hand  and 
seal  of  the  Secretary  of  State,  of  the  letters  of  a  public  agent  resi- 
dent aljroad,  and  of  the  official  order  of  a  foreign  colonial  governor 
concerning  the  sale  and  disposal  of  a  cargo  of  merchandise,  have 
been  held  admissible  evidence  of  those  transactions.^  How  far 
diplomatic  correspondence  may  go  to  establish  the  facts  recited 
therein  does  not  clearly  appear ;  but  it  is  agreed  to  be  generally 
admissible  in  all  cases ;  and  to  be  sufficient  evidence,  whenever 
the  facts  recited  come  in  collaterally,  or  by  way  of  introductory 
averment,  and  are  not  the  principal  point  in  issue  before  the 
jury.^ 

§  492.  The  government  gazette  is  admissible  and  sufficient  evi- 
dence of  such  acts  of  the  executive,  or  of.  the  government,  as  are 
usually  announced  to  the  public  through  that  channel,  such  as 
proclamations,'^  and  the  like.  For  besides  the  motives  of  self- 
interest  and  official  duty  which  IMnd  the  publisher  to  accuracy,  it 
is  to  l)e  remembered,  that  intentionally  to  pul)lish  any  thing  as 
emanating  from  public  authority,  with  knowledge  that  it  did  not  so 
emanate,  would  be  a  misdemeanor.^  But  in  regard  to  other  acts 
of  public  functionaries,  having  no  relation  to  the  affairs  of  govern- 
ment, the  gazette  is  not  admissible  evidence.^ 

§  493.  In  regard  to  official  rfnisters,  we  have  already  stated  ^^  the 
principles  on  which  these  books  are  entitled  to  credit ;  to  which  it 
is  only  necessary  to  add,  that  where  the  books  possess  all  the 
requisites  there  mentioned,  they  are  admissible,  as  competent  evi- 

1  Rex  V.  Francklin,  17  HoweU's  St.  Tr.  &  Bingham  v.  Cabot,  3  Dall.  19,  23,  39- 
637.  41. 

2  Jones  V.  Randall,  Cowp.  17 ;  Root  v.  ^  Radcliff  v.  United  Ins.  Co.  7  Jolins. 
Kinff,  7  Cowen,  613 ;  Spangler  v.  Jacoby,  51,  per  Kent,  C.  J. 

14  III.  -in).  -  Rex  V.  Holt,  5  T.  R.  436,  443;  At- 

^  Radcliff  V.  United  Ins.  Co.  7  Johns.  torney-Gcncral    v.   Theakstone,   8  Price, 

38,  51 ;   Talbot  v.  Seeman,  1  Cranch,  1,  89 ;  supm,  §  480,  and  cases  citeil  in  note ; 

37,  38.  Gen.  Picton's  case,  30  Howell's  St.  Tr. 

*  Thelluson   v.   Cosling,   4  Esp.  266;  493. 

Bradley  v.  Arthur,  4  B.  &  C.  292,  304.  »  2  Phil.  Evid.  108. 

See  also  Foster,  Disc.  1,  ch.  2,  §  12,  that  »  Rex  v.  Holt,  5  T.  R.  443,  per  Ld. 

pulilic  notoriety  is  sufficient  evidence  of  Kenyon. 

the  existence  of  war.  i'>  Supra,  §§  483,  484,  485. 


CHAP.  IV.] 


PUBLIC   DOCUMENTS. 


539 


deuce  of  tlic  facts  they  contain.  Ij..utiUs  tO  l^Q  rgmQm^>CVC,d  that 
Uiqj  m-Q  IIP^-,,  '"  ^vni'rnl,  evidcucG  of  any  facts  not  jei^ukcd  to.  be 
recorded  in  thcm,^and  which  did  not  occnr  in  the  presence  of  the 
registering  officer.  Thus,  a  parish  register  is  evidencft  only  of 
the  time  of  the  marriage,  and  of  its  celebration  de  facto  ;  for  these 
arc  the  only  facts  necessarily  within  the  knowledge  of  the  party 
making  the  entry .^  So,  a  register  of  l^aptism,  taken  by  itself,  is 
evidence  only  of  that  fact ;  though  if  the  child  were  proved  aliunde 
to  have  then  Ijcen  very  young,  it  might  afford  presumptive  evidence 
that  it  was  born  in  the  same  parish.^  Neither  is  the  mention  of 
the  child's  age  in  the  register  of  christenings,  proof  of  the  day 
of  l»s  birth,  to  support  a  plea  of  infancy."^  In  all  these  and  simi- 
lar cases,  the  register  is  no  proof  of  the  identity  of  the  parties 
there  named,  with  the  parties  in  controversy  ;  but  the  fact  of 
identity  must  be  established  by  other  evidence.^  It  is  also  neces- 
sary, in  all  these  cases,  that  the  register  be  one  which  the  law 
requires  should  be  kept,  and  that  it  be  kept  in  the  manner  required 
by  law.^  Thus,  also,  the  registers  kept  at  the  navy  office  are 
admissible,  to  prove  the.  death  of  a  sailor,  and  the  time  when  it 
occurred;'  as  well  as  to  show  to  what  ship  he  belonged,  and  the 
amount  of  wages  due  to  him.*^  The  prison  calendar  is  evidence  to 
prove  the  date  and  fact  of  the  commitment  and  discharge  of  a 


1  Fitler  v.  Shotwell,  7  S.  &  E.  14; 
Brown  v.  Hicks,  1  Pike,  232;  Haile  v. 
Palmer,  5  Mis.  403 ;  supra,  §  485. 

2  Doe  V.  Barnes,  1  M.  &  Rob.  38G,  389. 
As  to  the  kind  of  books  which  may  be 
read  as  registers  of  marriage,  see  2  Phil. 
Evid.  112,  113,  114. 

8  Rex  V.  North  Petherton,  5  B.  &  C. 
508 ;  Clark  i-.  Trinity  Church,  5  Watts  & 
Serg.  26G. 

■*  Burghart  v.  Angerstein,  6  C.  &  P. 
690.  See  also  Rex  v.  Clapham,  4  C.  & 
P.  29 ;  Iluet  v.  Le  iNIesurier,  1  Cox,  R. 
275;  Childress  r.  Cutter,  16  Mis.  24. 

6  Birt  V.  Barlow,  1  Dous.  170;  Bain  v. 
Mason,  1  C.  &  P.  202,  and^note;  Wedge- 
wood's  case,  8  Greenl.  75. 

*  See  the  cases  cited  supra,  §  484,  note 
(10);  N'ewhani  r.  Raithby,  1  Thilliin.  :!1'). 
Therefore  the  books  of  the  Fleet  and  of 
a  Wesleyan  chapel  have  been  rejected. 
Reed  i\  Passer,  1  Esp.  213 ;  Whittack  v. 
Waters,  4  C.  &  B.  375.  It  is  said  that  a 
copy  of  a  register  of  baptism,  kept  in  the 
island  of  Guernsey,  is  not  admissible ;  for 
which  Iluet  c.  Le  Mesurier,  1  Cox,  275,  is 
cited.     But  the  rei>ort  of  that  case  is  short 


and  obscure  ;  and,  for  aught  appearing  to 
the  contrary,  tlie  register  was  rejected 
only  as  not  competent  to  prove  the  age  of 
the  person.  It  is  also  said,  on  the  author- 
itj-  of  Leader  v.  Barry,  1  Esp.  o5o,  that  a 
copy  of  a  register  of  a  foreign  chaiiel  is 
not  evidence  to  prove  a  marriage.  But 
this  point,  also,  is  very  briefly  reported,  in 
three  lines ;  and  it  does  not  appear,  but 
that  the  ground. of  the  rejection  of  the 
register  was  that  it  was  not  authorized  or 
required  to  be  kept,  by  the  laws  of 
Prance,  where  the  marriage  was  cele- 
brated, namely,  in  the  Swedish  ambassa- 
dor's chapel,  in  Paris.  And  such,  prob- 
ably enough,  was  tlie  firct.  Subsequently 
an  examined  copv  of  a  register  of  mar- 
riages in  Barbatloes  has  been  admitted. 
Cood  V.  Cood,  1  Curt.  755.  In  the  United 
States,  an  authenticated  copy  of  a  foreign 
register,  legally  kept,  is  admissible  in  evi- 
dence. Ivingston  v.  Lesley,  10  S.  &  R. 
383,  389. 

"  Wallace  v.  Cook,  5  Esp.  117  ;  Barber 
V.  Holmes,  3  Esp.  190. 

*  Rex  r.  Fitzgerald,  1  Leach,  Cr.  Caa. 
24 ;  Rex  i:  Rhodes,  Id.  29. 


.')40  LAW   OF   EVIDENCE.  [PART  III. 

•prisoner.^  The  books  of  assessment  of  piil)lic  taxes  arc  admissi- 
l)lc  to  prove  the  assessment  of  the  taxes  upon  the  individuals,  and 
I'or  the  property  therein  mentioned.^  The  books  of  municipal 
corporations  are  evidence  of  the  elections  of  their  officers,  and  of 
other  corporate  acts  there  recorded.^  _  Tlie  books  of  private  corpo- 
rations are  admissible  for  similar  purposes,  between  members  of 
the  corporation  ;  for  as  between  them  the  books  are  of  the  nature 
of  public  books."*  Ajid  all  the  members  of  a  company  are  charge- 
able with  knowledge  of  tlie  entries  made  on  their  books  by  their 
agent,  in  the  course  of  his  Ijusiness,  and  with  the  true  meaning 
of  tliose  entries,  as  understood  by  him.^  But  tlie  books  cannot,  in 
general^be  adduced  bv  the  corporation^  ,in  support  of  its  Dwn 
clainis.J^iu§t  o.  ktJMSSKrr 

§  494.  The  reciistry  of  a  ship  is  not  of  the  nature  o^.  tlia-^mJblic 
or  official  registers  now  under  consideratimi,  the  eiUry  not^bcmo- 
of  any  transaction,  of  which  the  public  officer  who  makes  the 
entry  18  conusant.  ,.,Nor  is  it  a  document  required  by  the  law  of 
nations,\as  expressive  of  the  ship's  national  character.  The  regis- 
try acts  are  considered  as  institutions  purely  local  and  municipal, 
for  purposes  of  public  policy.  The  register,  therefore,  is  not  of 
itself  evidence  of  property,  except  so  far  as  it  is  confirmed  by  some 
auxiliary  circumstance,  showing  that  it  was  made  by  the  authority 
or  assent  of  the  person  named  in  it,  and  who  is  sought  to  be 
charged  as  owner.  Without  such  connecting  proof,  the  register 
has  been  held  not  to  be  even  ])ri7nd  facie  evidence,  to  charge  a 
person  as  owner  ;  and  even  with  such  proof,  it  is  not  conclusive 
evidence  of  ownership ;  for  an  equitable  title  in  one  person  may 
well  consist  with  the  documentary  title  at  the  custom-house  in 
another.  Where  the  question  of  ownership  is  merely  incidental, 
the  register  alone  has  been  deemed  sufficient  jjn'ma /ac«e  evidence. 
But  in  favor  of  the  person  claiming  as  owner  it  is  no  evidence  at 
all,  being  nothing  more  than  his  own  declaration.^ 

1  Sake  V.  Thomas,   3  B.   &  P.   188;  ^  Allen  v.  Coit,   6  HiU   (N.  Y.),  Rep. 

Hex  V.  Aides,  1  Leach,  Cr.  Cas.  435.  318. 

-  Doe  V.  Seatoii,  2  Ad.  &  El.  178 ;  Doe  '^  London  v.  Lynn,  1  IL  Bl.  214,  note 

r.  Arkwrijiht,  Id.  182,  n. ;  Rex  ii.  King,  2  (c) ;  Commonwealth  v.  Woelper,  3  S.  & 

T.   R.   234;    Ronkendorff  v.    Taylor,  4  R.   20;    Hitrhland  Tiu-npike  Co.  v.   Mc- 

Reters,   34'J,   360.     Such  books  are  also  Kean,  10  .loims.  154. 

])rimn  fuck-  evidence  of  domicile.     Doe  v.  "3  Kent,  Comm.  149,  150 ;  Weston  v. 

Cartwritrht,  Ry.  &  M.  •12 ;  1  C.  &  P.  218.  Penniman,  1  Mason,  30G,  318,  per  Story, 

3  Rex  V.  Martin,  2  Campb.  100.  J. ;    Bixby  v.    The   Franklin  Ins.   Co.  8 

*  Marriage  v.  Lawrence,  3  B.  &  Aid.  Pick.   8G ;    Colson  v.  Bonzey,  6  Greenl. 

144;  Gibbon's  case,  17  Howell's  St.  Tr.  474;    Abbott    on    Shipping,   pp.   63-66, 

810.  (Story's  edit,  and  notes) ;  Tinkler  v.  Wal- 


CHAP.  IV.]  PUBLIC   DOCUMENTS.  541 

§  495.  A  nhiys  I'll-^jook,  where  it  is  required  l)j  law  to  be  kept, 
is.  ail  ofljiciai.j'egic»tcjLV-SO  far  as  regards  the  transactions  required 
by  law  to  be  entered  in  it ;  but  no  furtlicr.  Thus,  tlie  act  of  con- 
gress^ provides,  that  if  any  seaman  who  has  signed  the  shipping 
articles,  shall  aljsent  himself  from  the  ship  without  leave,  an  entry 
of  that  fact  shall  be  made  in  the  log-book,  and  the  seaman  will  be 
liable  to  be  deemed  guilty  of  desertion.  But  of  this  fact  the  log- 
book, though  an  indispensaltlc  document,  in  making  out  the  proof 
of  desertion,  in  order  to  incur  a  forfeiture  of  wages,  is  never  con- 
clusive, but  only  j^rhnd  facie  evidence,  open  to  explanation,  and  to 
rebutting  testimony.  Indeed,  it  is  in  no  sense  ^:>er  se  evidence, 
except  in  the  cases  provided  for  by  statute ;  and  therefore  it  cannot 
be  received  in  evidence,  in  favor  of  the  persons  concerned  in 
making  it,  or  others,  except  by  force  of  a  statute  making  it  so  ; 
though  it  may  be  used  against  any  persons  to  whom  it  may  be 
brought  home,'  as  concerned  either  in  writing  or  directing  what 
should  be  contained  therein.^ 

§  496.  To  entitle  a  book  to  the  character  of  an  officml__^registsr, 
it  is^ np^  necessajx.tijaLiJ^^^  rc.quire_d..j3^aii„.Q^xpre,ss.  statutfi^flUae- 
kept :  nor  tliat  the  nature  of  tlic  ofnco  should  rcndQ]:_the  boojj 
liLiU;jp.Ui(.^ubiL'.  It  is  sufticient,  tluit  it  Ko  ,Jirn-!,d  by  the  i^roper 
authority  to  he  kept,  and  that  it  be  kept  according  to  such  direc- 
tions. Tbus,  a  book  kept  by  the  secretary  of  bankrupts,  by  order 
of  the  Lord  Chancellor,  was  held  admissible  evidence  of  the  allow- 
ance of  a  certificate  of  bankruptcy.^  Terriers  seem  to  be  admitted, 
jiartly  on  the  same  principle ;  as  well  as  upon  the  ground,  that 
they  are  admissions  by  persons  who  stood  in  privity  with  the 
parties,  between  whom  they  are  sought  to  be  used."^ 

§  497.  Under  this  head  may  be  mentioned  hooks  and  chronicles 
of  public  history,  as  partaking  in  some  degree  of  the  nature  of 
public  documents,  and  being  entitled  on  the  same  principles  to  a 
great  degree  of  credit.     Any  approved  public  and  general  history, 

pole,  14  East,  226 ;  Mclver  v.  Humble,  16  W.  Rob.  R.  303,  311.     [The  Hercules, 

East,  109;  Fraser  v.  Hopkins,  2  Taunt.  Sprajiue's  Decisions,  534.] 

5;  Jones  v.  I'itclier,  3  Stewart  &  Porter,  '^  lionry  c.  Leii;h,-o  Campb.  499,  501. 

R.  135.  *  By  tiie  ecclesiastical  canons,  an  in- 

1  Stat.  1790,  c.  29,  §  6;  [1  U.  S.  Stat,  quiry  is  directed  to  be  made,  trom  time  to 

at  Large  (L.  &  IJ.'s  edit.),  133.]  time,  of  tlie  temporal  rights  of  the  cler- 

■-  Abbott  on  Shijiping,  p.  408,  note  (1),  gyman  in  every  parish,  and  to  be  returned 
(Story's  edit.);  Ornc  r.  Townsend,  4  into  the  registry  of  the  bisliop.  Tiiis  re- 
Mason,  544;  Cloutnian  c.  Tunison,  1  Sum-  turn  is  denominated  a  terrier.  Cowel, 
ner,  373 :  United  States  v.  Gibert,  2  Int.  verb.  'JVirnr,  scil.  cat(ilo<iiis  teirarum. 
Sumner,  19,  78 ;  The  Sociedade  Feliz,  1  Burrill,  Law  Diet.  verb.  Terrier. 
VOL.  I.                                               46 


542 


LAW  OF   EVIDENCE. 


[part  III. 


therefore,  is  admissible  to  prove  ancient  facts  of  a  public  nature, 
and  the  general  usages  and  customs  of  the  country.^  But  in 
regard  to  matters  not  of  a  public  and  general  nature,  such  as  the 
custom  of  a  particular  town,  a  descent,  the  nature  of  a  particu- 
lar abbey,  the  boundaries  of  a  county,  and  the  like,  they  are 
not  admissible.^ 

,  §  4 US.  In  regard  to  certificates  given  hy  ijcrsons  in  official  station, 
the  general  rule  is,  that  the  law  never  allows  a  certificate  of  a 
mere  matter  of  fact,  not  coupled  with  any  matter  of  law,  to  be 
admitted  as  evidence.^  If  the  person  was  bound  to  record  the 
fact,  then  the  proper  evidence  is  a  copy  of  the  record,  duly  authen- 
ticated. But  as  to  matters  which  he  was  not  bound  to  record,  his 
certificate,  being  extra-official,  is  merely  the  statement  of  a  private 
person,  and  will  therefore  be  rejected.^      So,  where  an  officer's 


1  Bull.  N.  P.  248,  249 ;  Morris  v. 
Harmer,  7  Peters,  554 ;  Case  of  Warren 
Hastings,  referred  to  in  30  Howell's  St. 
Tr.  4U2;  Phil.  &  Am.  on  Evid.  p.  606; 
Neal  V.  Fry,  cited  1  Salk.  281;  Ld. 
Bridgewater's  case,  cited  Skin.  15.  The 
statements  of  the  chroniclers.  Stow  and 
Sir  W.  Dugdale,  were  held  inadmissible 
as  evidence  of  tlie  fact,  that  a  person  took 
his  seat  by  special  summons  to  parlia- 
ment in  the  reign  of  Henry  VIII.  The 
Vaux  Peerage  case,  5  Clark  &  Fin.  538. 
In  Iowa,  books  of  history,  science,  and 
art,  and  publislied  maps  and  charts,  made 
by  persons  inditterent  Ijetween  the  parties, 
are  presumptive  evidence  of  facts  of  gen- 
eral interest.  Code  of  1851,  §  2402. 
[  *  We  have  often  had  occasion  to  advert 
to  the  want  of  symmetry  in  the  law,  in 
regard  to  the  admission  of  books  of  art 
and  science  to  be  read  before  the  court 
and  jury,  in  order  to  establish  the  laws  or 
rules  of  that  particular  art  or  jirofession. 
Kedf  on  Wills,  Part  1,  §  15,  pi.  17,  18, 
10,  pp.  14G,  147.  Tiic  rule  seems  well 
|eettled,  that  such  books  are  not  to  be  read 
efore  the  jury,  either  as  evidence  or  ar- 
ument.  Commonwealth  v.  Wilson,  1 
Gray,  337 ;  Washburn  v.  Cuddihy,  8 
Gray,  430;  Ashworth  v.  Kittridge,  12 
Cusii.  103.     But  courts  often  manifest  the 

(consciousness  of  tfie  want  of  principle 
upon  wiiich  the  rule  excluding  such 
books  rests,  by  quoting  the  very  same 
books  in  banc  whicii  they  were  deciding 
were  riglitfully  rejected  at  the  trial,  and 
thus  declaring  a  rule  of  law,  pertaining  to 
the  veterinary  art  or  profession,  or  any 
other  subject,  upon  the  autiiority  of  these 
eame  books,  which,  in  the  same  breath, 


i 


they  declare  to  be  so  unreliable  as  not  to 
be  evidence,  either  of  the  laws  or  the  lacts 
involved  in  the  same  identical  point  upon 
which  the  court  decided  solely  upon  the 
evidence  of  these  same  books.  This  goes 
upon  the  ground,  tiiat  reading  or  hearing 
read  such  books  will  be  entirely  safe  and 
proper  while  sitting  in  banc,  but  not 
equally  so  to  the  same  judges  while  sit- 
ting with  a  jury  to  determine,  among 
others,  the  very  same  questions  then 
before  the  full  court.  This  seems  to  give 
some  countenance  to  the  complaints  of 
the  learned  author  of  the  "Jurisprudence 
of  Insanity,"  in  his  last  edition,  upon  this 
point,  of  the  admissibility  of  medical 
books  to  prove  the  laws  of  the  medical 
profession.  Washburn  v.  Cuddihy,  8 
Gray,  430.  It  is  suggested  in  a  late  case, 
Tutton  V.  Drake,  5  H.  &  N.  647,  that  the 
time  of  the  sun's  rising  and  setting  cannot 
be  proved  by  the  almanac.  But  it  would 
seem  that  all  courts  should  take  judicial 
notice  of  facts  of  such  uniformity  and 
general  notoriety.    Ante,  §  488rt.J 

^  Stainer  v.  Droitwich,  1  Salk.  281; 
Skin.  623,  s.  c. ;  Piercy's  case,  Tho. 
Jones,  164 ;  Evans  v.  Getting,  6  C.  &  P. 
586,  and  note.  [  *  Lighthouse  journals  re- 
ceived as  evidence.  The  Maria  Das 
Dorias,  32  Law  J.  Adm.  163. J 

3  WUles,  540,  550,  per  VViUes,  Ld. 
Ch.  J. 

•»  Oakes  v.  Hill,  14  Pick.  442,  448; 
Wolfe  (;.  Washburn,  6  Cowen,  261 ;  Jack- 
son V.  Miller,  Id.  751 ;  Governor  v.  Mc- 
Atlee,  2  Dev.  15,  18;  United  States  v. 
Buforp,  3  Peters,  12,  20 ;  [Childress  v. 
Cutter,  16  Miss.  24.] 


CHAP. 


IV.] 


PUBLIC   DOCUMENTS. 


543 


certificate  is  made  evidence  of  certain  facts,  he  cannot  extend  its 
effect  to  other  facts,  by  stating  tliose  also  in  the  certificate ;  but 
such  parts  of  tlie  certificate  will  be  suppressed.^  The  same  rules 
are  applied  to  an  officer's  return.^ 


1  Johnson  v.  Hocker,  1  Dal.  406,  407  ; 
Governor  v.  Bell,  3  Murpli.  331 ;  Gov- 
ernor v.  Jeffrey's,  1  Hawks.  2'J7  ;  Stewart 
V.  Alison,  6  S.  &  R.  324,  329;  Newman  v. 
Doe,  4  How.  522 ;  [Brown  v.  The  Inde- 
pendence, Crabbe,  54.] 

■■2  Gator  V.  Stokes,  1  M.  &  S.  599 ;  Ar- 
nold V.  Tourtelot,  13  Tick.  172.  A  no- 
tary's certificate  that  no  note  of  a  certain 
description  was  protested  by  him  is  inad- 
missible. Exchcange,  &c.  Co.  of  N.  Orleans 
V.  Boyce,  3  Eob.  Louis.  R.  307 ;  [Bicknell 


V.  Hill,  33  Maine,  207.]  [*The  return  of 
public  officers  appointed  to  investijj;ate  a 
matter  of  fact  has  sometimes  been  held  to 
be  evidence,  even  between  other  parties. 
Ilayward  v.  Bath,  38  N.  H.  179.  But,  in 
general,  such  matters  are  refjarded  so  far 
in  the  nature  of  private  transactions,  as 
not  to  be  evidence,  except  between  the 
inmiediate  parties,  and  for  the  particular 
purpose  of  the  inquiry.  Wheeler  v. 
Framingham,  12  Gush.  387.] 


544  LAW   OF  EVIDENCE.  [PAUT    III. 


>L- 


N.^ K' 


•+' 


CHxVPTER   V. 


EECORDS   AND   JUDICIAL   WRITINGS. 

[*§  499.  Records  and  judicial  writings. 

500.  Statutes  are  records ;  but  the  term  is  commonly  used  with  reference  to 
judicial  proceedings. 

501.  Exemplification  of  record  required  where  its  existence  is  in  issue. 
602.  Record  itself  may  be  used  in  same  court ;  otherwise,  a  copy. 

503.  Courts  take  notice  of  seal  of  other  courts^  &c.,  in  same  jurisdiction. 

504.  How  records  of  several  states  authenticated. 

505.  Tills  not  exclusive  of  all  others,  and  not  applicable  to  all  courts. 
500.  The  judge  must  certify  the  clerk,  and  that  the  attestation  is  in  due  form. 

507.  An  office  copy  is  one  made  by  the  proper  officer.       • 

508.  An  examined  copy   is   one   proved  by   a  witness  comparing  it  with  the 
original. 

509.  Lost  records  proved  like  other  lost  writings. 

510.  Verdicts,  evidence  in  some  cases,  if  final. 

511.  Decree  in  chancefy  proved  by  copy  of  decree  enrolled,  &c. 

512.  Answers  in  chancery,  how  proved. 

513.  Records  of  inferior  courts  of  record  proved  the  same  as  those  of  superior 
courts. 

514.  Foreign  judgments  proved  by  examined  copy,  or  copy  under  seal  of  state. 
514a.  The  mode  of  proof  and  construction  of  foreign  documents. 

515.  In  case  of  private  inquisition,  the  commission  as  well  as  the  return  must  be 
put  in  evidence. 

16.  Dbpositions  in  chancery  not  read  without  proof  of  bill  and  answer. 

517.  Depositions  taken  by  special  commission  read  in  connection  with  commis- 
sion and  interrogatories. 

518.  Wills  not  admitted  in  evidence  except  in  connection  with  probate. 

519.  Letters  of  administration  received  in  evidence. 

520.  Examination  of  prisoners  proved  by  magistrate,  or  by  signature  of  prisoner. 

521.  Writs  proved  by  production,  or  by  copy  after  return. 

522.  Admissibility  and  effect  of  records. 
23.  Conclusive  as  to  parties  and  privies,  but  not  as  to  strangers. 

524.  But  this  must  extend  to  both  parties  equally. 

525.  Proceedings  in  rem. arc  an  exception  to  this  rule. 

526.  So  also  where  the  proceedings  affect  matters  of  a  pubhc  nature. 

527.  Or  where  used  as  inducement,  or  to  prove  the  fact  of  a  judgment. 
527a.  So  the  judgment  may  be  evidence  of  an  admission  by  the  party. 

528.  Conclusiveness  resti-icted  to  matters  directly  in  issue. 

529.  But  to  become  conclusive,  the  suit  must  proceed  to  judgment. 

530.  And  the  judgment  must  be  upon  the  merits. 

531.  Judgment  equally  conclusive,  whether  specially  pleaded  or  not. 


f 


CHAP,  v.]  RECORDS   AND   JUDICIAL  WRITINGS.  545 

§  531a.  Furtlier  discussion  of  the  question  of  estoppels. 

632.  The  identity  of  the  transactions  must  be  shown  by  other  proof. 

633.  Recovery,  without  satisfaction,  no  bar  to  anotlicr  action  against  another 
party. 

634.  Judgment  conclusive  as  to  all  facts  involved  in  the  issue. 

635.  SufHcient  if  real  parties  are  tlie  same,  although  not  nominally. 

636.  Privity  extends  to  all  persons  represented  by  the  parties, 
^j^^...-— 637.  Judgments  in  criminal  actions  not  evidence  m  civil,  and  vice  versa. 

538.  Eecord  always  evidence  of  the  fact  of  judgment  rendered. 
639.  But  not  of  the  facts  upon  which  founded,  unless  between  same  parties. 
539a.  In  contracts  joint  and  several,  judgment  in  one  form  no  bar  to  suit  in  the 
other. 

540.  Foreign  judgments ;  different  aspects;  jurisdiction  must  appear. 

541.  Such  judgments  in  rem  always  conclusive. 

642.  Proceedings  by  foreign  attachment  somewhat  of  the  same  nature. 

643.  This  same  effect  attaches  to  the  property  wherever  found. 

544,  This  has  been  claimed  as  to  foreign  decrees  affecting  capacity  and  status  of 
persons. 
H  545.  Judgments  in  regard  to  marriage  and  divorce  binding  everywhere. 

fe;-   -•"^646.  The  effect  of  foreign  judgments  in  personam. 
^^^^;^^-MQa.  They  are  now  held  conclusive  in  the  EngUsh  courts. 

^^"^7.  The  American  courts  do  not  seem  to  give  them  this  effect. 

548.  The  effect  of  judgments  in  the  different  states. 

548a.  An  interlocutory  judgment  in  one  state  not  enforceable  in  another  state. 

549.  It  makes  no  difference  as  to  foreign  judgments,  whether  they  are  between 

citizens  or  foreigners. 
650.  Decrees  of  probate  courts  conclusive,  if  within  their  jurisdiction. 

551.  Decrees  in  chancery  conclusive ;  effect  of  statements  in  the  pleadings. 

552.  Depositions  in  chancery,  how  far  evidence. 

553.  Generally  admissible  when  subject-matter  of  suits  the  same,  and  the  party 

had  opportunity  to  cross-examine. 

554.  Not  always  indispensable  to  the  admission  of  depositions  in  equity  that  the 

witness  be  cross-examined. 

555.  Depositions   evidence  of   custom   against   strangers;    secondary  evidence 

where  witness  cannot  be  produced. 

556.  Judicial  inquisitions /»n7H«/ac("e  evidence.] 

§  499.  The  next  class  of  written  evidence  consists  of  Records 
and  Judicial  Writings.  And  here,  also,  as  in  the  case  of  Public 
Documents,  we  shall  consider,  first,  the  mode  of  proving  them ; 
and  secondly,  their  admissihiliig  and  effect. 

§  500.  The  case  of  statutes,  which  are  records,  has  already  been 
mentioned  under  the  head  of  legislative  acts,  to  which  they  seem 
more  properly  to  belong,  the  term  record  being  generally  taken  in 
the  more  restricted  sense,  with  rtiference  to  judicial  tribunals. 
It  will  only  be  observed,  in  this  place,  that,  though  the  courts  will 
take  notice  of  all  public  statutes  without  proof,  yet  private  statutes 
must  be  proved,  like  any  other  legislative  documents,  namely,  by 

46* 


546  LAW   OF   EVIDENCE.  [PART   III. 

an  exempli  Pica  tioii  under  the  great  seal,  or  by  an  examined  copy, 
or  l)y  a  copy  printed  by  authority .^ 

§  501.  As  to  the  proofs  of  records,  this  is  done  either  by  mere 
production  of  the  records,  without  more,  or  by  a  copy.^  Copies 
of  record  are,  (1.)  exemplifications ;  (2.)  copies  made  by  an  au- 
thorized officer ;  (3.)  sworn  copies.  Exemplifications  are  either, 
first,  under  the  great  seal ;  or,  secondly,  under  the  seal  of  the 
particular  court  where  the  record  remains.^  When  a  record  is  the 
gist  of  the  issue,  if  it  is  not  in  the  same  court,  it  should  be  proved 
by  an  exemplification .*  By  the  course  of  the  common  law,  where 
an  exemplification  under  the  great  seal  is  requisite,  the  record 
may  be  removed  into  the  court  of  chancery,  by  a  certiorari^  for  that 
is  the  centre  of  all  the  courts,  and  there  the  great  seal  is  kept. 
But  in  tlie  United  States,  the  great  seal  being  usually  if  not  always 
kei)t  by  the  Secretary  of  State,  a  different  course  prevails ;  and  an 

I  exemplified  copy,  under  the  seal  of  the  court,  is  usually  admitted, 
even  upon  an  issue  of  nid  tiel  record,  as  sufficient  evidence.^ 
When  the  record  is  not  the  gist  of  the  issue,  the  last-mentioned 
kind  of  exemplification  is  always  sufficient  proof  of  the  record  at 
common  law.^ 

I§  502.  The  record  itself  is  produced  only  when  the  cause  is  in 
the  same  court,  whose  record  it  is;  or,  when  it  is  the  subject 
of  proceedings  in  a  superior  court.  And  in  the  latter  case, 
although  it  may  by  the  common  law  be  obtained  through  the  court 
of  chancery,  yet  a  certiorari  may  also  be  issued  from  a  superior 
court  of  common  law,  to  an  inferior  tribunal,  for  the  same  purpose, 
whenever  the  tenor  only  of  the  record  will  suffice ;   for  in  such 

1  [See  supra,  §§  480,  481.]  also  Pepoon   v.  Jenkins,   2  Johns.   Cas. 

■^  [Writing  done  with  a  pencil  is  not  118;  Colcm.  &  Cain,  Cas.  136,  s.  c.     In 

ailnns.sil)le  in  public  records,  nor  on  pa-  some  of  the  states,  copies  of  record  of 

jiers  drawn  to  be   used  in  legal  proceed-  the    courts   of   the   same    state,   attested 

ings  wliich  must  become  public  records,  by  the  clerk,  have,  either   by  immemo- 

Meserve  v.  Hicks,  4  Foster,  29-5.]  rial    usage,   or    by    early    statutes,    been 

^  Bull.  N.  r.  227,  228.     An  exemplifi-  received  as  sufficient  in  all  cases.     Vance 

cation  under  the  great  .'^eal  is  said  to  be  of  v.  Kcardon,  2  Nott  &  McC^ord,  299 ;  Ladd 

itself  a  record  of  the  greatest  validity.     1  v.  Blunt,  4  Mass.  402.     Whether  the  seal 

Gilb.  Kvid.  by  Lofft,  p.  19,  Bull.  N.  P.  220.  of  the  court  to  such  copies  is  necessary, 

Nothing  but  a  record  can  be  exemplified  in  Massachusetts,  c/ucvre  ;  and  see  Common- 

in  this  manner.     3  Inst.  173.  wealth  v.  Phillips,  11  Pick.  30.     [In  Cora- 

*  [The  rule  allowing  a  copy  of  a  rec-  moiiwealth  v.  Downing,  4  Gray,  29,  30,  it 

ord  to  be  used  in  evidence  is  founded  on  is  decided  that  a  copy  of  a  record  of  a 

convenience ;  and  when  the  original  rec-  justice  of  the  peace  need  not  bear  a  seal ; 

ord  itself  is  produced,  it  is  the   highest  the  court  saying,    "it  need   not  bear  a 

evidence,    and    is    admissible.     Gray    v.  seal,  nor  is  it  the  practice  to  affix  one."  ] 

Davis,  27  Conn.  447.]  «  1  Gilb.  Evid.  26 ;  [Tillotson  v.  War- 

"  Vail  V.   Smith,  4   Cowen,  71.     See  ner,  3  Gray,  574,  577.] 


CHAP,  v.]  RECORDS   AND   JUDICIAL   WRITINGS.  547 

cases  iiothiim-  is  returned  but  the  tenor,  that  is,  a  literal  transcrir/fc„ 
of  the  record,  under  the  seal  of  the  court :  and  this  is  sufTLeientJii. 
countervail  the  plea  o^nul  tiel  record!  Where  the  record  is  put  ni 
issue  in  a  superior  court  of  concurrent  jurisdiction  and  authority, 
it  is  proved  by  an  excmplirication  out  of  chancery,  being  obtained 
and  brought  thither  by  a  certiorari  issued  out  of  chancery,  and 
transmitted  thence  by  mittimus.'^ 

§  503.  hi  proving  a  record  by  a  copy  imder  seal,  it  is  to  be 
remembered,  that  the  courts  recognize  without  proof  the  seal  of 
state,  and  the  seals  of  the  superior  courts  of  justice,  and  of  all 
courts,  established  by  public  statutes.^  And  by  parity  of  reason  it 
would  seem,  that  no  extraneous  proof  ought  to  be  required  of  the 
seal  of  any  department  of  state,  or  public  office  established  by  law, 
and  required  or  known  to  have  a  seal.^  And  here  it  may  be 
observed,  that  copies  of  records  and  judicial  proceedings,  under 
seal,  are  deemed  of  higher  credit  than  sworn  copies,  as  having 
passed  under  a  more  exact  critical  examination.^ 

§  504.  In  regard  to  the  several  states  composing  the  United 
States,  it  has  already  been  seen,  that  though  they  are  sovereign 
and  independent,  in  all  things  not  surrendered  to  the  national 
government  by  the  constitution,  and,  therefore,  on  general  princi- 
ples, are  liable  to  be  treated  by  each  other  in  all  other  respects 
as  foreign  states,  yet  their  mutual  relations  are  rather  those  of 
domestic  independence,  than  of  foreign  alienation.*^  It  is  accord- 
ingly provided  in  the  constitution,  that  "  fidl  faith    and   credit 

1  Woodcraft  r.  Kinaston,  2  Atk.  317,  within  the  province  of  the  jury.    And  see 

[318;  1  Tidd's  Pr.  3U8 ;  Butcher  &  Aid-  Collins  ?;.  Matthews,  5  East,  473.     But  in 

(  worth's    case,    Cro.    El.    H'Jl.      Where  a  New  York,  the  question  of  fact,  in  every 

I  domestic   record  is  put  in    issue   by  the  case,  is  now,  by  statute,  referred  to  tlie 

plea,  the  question  is  tried  by  the  court,  jury.     Troter  v.  Mills,  6  Wend.  512;  2 

notwithstanding  it  is  a  question  of  fact.  Rev.  Stat.  507,  §  i  (od  edit.). 

And  the  judgment  of  a  court  of  record  of  ^  i  Tidd's  Pr.  398. 

a  sister  state  in  the   Union  is  considered,  ^  Olive  v.  Guin,  2  Sid.  145,   146,  per 

for  this  purpose,  as  a  domestic  judgment.  Witlierington,   C.  B. ;    1  Gilb.  Evid.  19; 

Hall  I'.  Williams,  ij   Pick.   227  ;  Ca'rter  v.  12  Vin.  Abr.  132,  133,  tit.  Evid.  A.  b.  69; 

Wilson,   1    Dev.  &  Bat.  3tJ2.     [So  is  the  Delafield   v.    Hand,    3   Johns.    310,    314; 

judgment  of  a  circuit  court  of  the  United  l)en.   v.    Vreelandt,   2   Ilalst.    555.     The 

States   considered  a  domestic  judgment,  seals    of   counties    Palatine    and    of  the 

Williams  i'.   Wilkes,   14  Penn.   State  K.  ecclesiastical  courts  are  judicially  known, 

|'228.]     But  if  it  is  a  foreign  record,  the  on  the  same  general  principle.     See  also, 

[issue  is  tried  by  the  jurv.  "  The  State  v.  as  to  probate  courts.  Chase  v.  Hathaway, 

Isliain,  3  Hawks,  185;  Adams  v.  Betz,  1  14  Mass.  222;  Judge,  &c.  v.  Briggs,  3  N. 

IWatts,  425 ;  BiUdwin  v.  Hale,  17  Johns.  Hamp.  309. 
1272.     The  reason  is,  that  in  the  former         •*  Su/ira,  §  6. 

case  the  judges  can  themselves  have  an  ^  2  I'hil.  Evid.  130 ;  Bull.  N.  P.  227. 

inspection  of  tlie  very  record.     But  in  the  "  Mills    v.    Duryee,    7    Cranch,   481 ; 

latter,  it  can  only  be  proved  by  a  cojiy,  Hampton   v.   McCounel,    3   Wheat.   234; 

the   veracity   of   which   is   a   mere   fact,  supra,  §  489. 


548  LAW   OF   EVIDENCE.  [PART   III. 

shall  be  given,  in  each  state,  to  the  public  acts,  records,  and  judi- 
cial proceedings  of  every  other  state.  And  the  congress  may, 
by  general  laws,  prescribe  the  manner  in  which  such  acts,  records, 
and  proceedings  shall  be  proved,  and  the  clfect  thereof."  ^  Under 
this  provision  it  has  been  enacted,  that  "  the  records  and  judicial 
proceedings  of  the  courts  of  any  state  shall  be  proved  or  admitted, 
in  any  otlier  court  within  the  United  States,  by  the  attestation  of 
the  clerk  and  the  seal  of  the  court  annexed,  if  there  be  a  seal, 
together  with  a  certificate  of  the  judge,  chief  justice,  or  presiding 
magistrate,  as  the  case  may  be,  that  the  said  attestation  is  in  due 
form.  And  the  said  records  and  judicial  proceedings,  authenti- 
cated as  aforesaid,  shall  have  such  faith  and  credit  given  to  them, 
in  every  court  within  the  United  States,  as  they  have  by  law  or 
usage  in  the  courts  of  the  state,  from  whence  said  records  are 
or  sliall  be  taken."  ^  By  a  subsequent  act,  these  provisions  are 
extended  to  the  courts  of  all  territories,  subject  to  the  jurisdiction 
of  the  United  States.^ 

§  505.  It  seems  to  be  generally  agreed,  that  this  method  of 
authentication,  as  in  the  case  of  public  documents  before  men- 
tioned, is  not  exclusive  of  any  other,  which  the  states  may  think 
proper  to  adopt.*  It  has  also  been  held,  that  these  acts  of  con- 
gress do  not  extend  to  judgments  in  criminal  cases,  so  as  to  render 
a  witness  incompetent  in  one  state,  who  has  been  convicted  of  an 
infamoiis  crime  in  another.^  The  judicial  proceedings  referred 
to  in  these  acts  are  also  generally  understood  to  be  the  proceed- 
ings of  courts  of  general  jurisdiction,  and  not  those  which  are 
merely  of  municipal  authority ;  for  it  is  required  that  the  copy  of 
the  record  shall  1)C  certified  by  the  clerk  of  the  court,  and  that 
there  shall  also  be  a  certificate  of  the  judge,  chief  justice,  or 
j)rcsidiug  magistrate,  that  the  attestation  of  the  clerk  is  in  due 
form.  This,  it  is  said,  is  founded  on  tlie  supposition  that  the 
court,  whose  proceedings  are  to  be  thus  authenticated,  is  so  con- 
stituted as  to  admit  of  such  officers ;  the  law  having  wisely  left 

1  Const.  U.  S.  Art.  iv.  §  1.  Tlie   State   v.    Stade,   1  D.  Chipm.  303 ; 

2  Stat.  U.  S.  May  2(5,  1790,  2  LL.  U.  Kaynham  v.  Canton,  3  Pick.  2'J3 ;  Biddis 
S.  ch.  38  [11],  p.  102  (Bioren's  edit.);  1  v.  James,  6  Binn.  321;  ex  parte  Povall, 
U.  S.  Stat,  at  Large  (L.  &  B.'s  edit.),  3  Leigh's  K.  SlG ;  Pepoon  v.  Jenkins, 
122.]  2  Johns.    Cas.    119;    Eihnore    v.    Mills, 

8  Stat.  U.  S.  March  27,  1804,  8   LL.  1  Ilavw.    3.59;   snprn,  §  489;    Rev.  Stat. 

U.  S.  cii.  409  [50],  p.  021  (Bioren's  edit.) ;  Mass.'  ch.  94,  §§  57,  59,  00,  01. 
[2  U.  S.  Stat,  at  Large  (L.  &  B.'s  edit.),         ^  Commonwealtli  v.  Green,  17   Mass. 

298]  515;  supra,  §  370,  and  cases  tliere  cited. 

•*  Kean  v.  Rice,  12  S.  &  R.  203,  208 ; 


CHAP,  v.]  RECORDS   AND   JUDICIAL  WRITINGS.  549 

the  records  of  magistrates,  who  may  be  vested  with  limited  judi- 
cial authority,  varying  in  its  objects  and  extent  in  every  state,  to 
be  governed  by  the  laws  of  the  state,  into  which  they  may  be 
introduced  for  the  purpose  of  behig  carried  into  effect.^  Accord- 
ingly it  has  been  held,  that  the  judgments  of  justices  of  the  j^eace 
arc  not  within  the  meaning  of  these  constitutional  and  statutory 
provisions.2  But  the  proceedings  of  courts  of  chancery,  and  of 
probate,  as  well  as  of  the  courts  of  common  law,  may  be  proved 
in  the  manner  directed  by  the  statute.^ 

§  506.  Under  these  provisions  it  has  been  held,  that  the  attesta- 
tion of  the  copy  must  be  according  to  the  form  used  in  the  state, 
from  which  the  record  comes  ;  and  that  it  must  be  certified  to  be 
so,  by  the  presiding  judge  of  the  same  court,  the  certificate  of  the 
clerk  to  that  effect  being  insufficient.*  Nor  will  it  suffice  for 
the  judge  simply  to  certify  that  the  person  who  attests  the  copy 
is  the  clerk  of  the  court,  and  that  the  signature  is  in  his  hand- 
writing.^ The  seal  of  the  court  must  be  annexed  to  the  record 
with  the  certificate  of  the  clerk,  and  not  to  the  certificate  of  the 
judge.^  If  the  court,  whose  record  is  certified,  has  no  seal,  this 
fact  should  appear,  either  in  the  certificate  of  the  clerk,  or  in  that 
of  the  judge.'^  And  if  the  court  itself  is  extinct,  but  its  records 
and  jurisdiction  have  been  transferred  by  law  to  another  court, 
it  seems  that  the  clerk  and  presiding  judge  of  the  latter  tribunal 
are  competent  to  make  the  requisite  attestations.^  If  th«i^  copy 
produced  purports  to  be  a  record,  and  not  a  mere  transcript  of 
minutes  from  the  docket,  and  the  clerk  certifies  "  that  the  fore- 
going is  truly  taken  from  the  record  of  the  proceedings  "  of  the 

1  Warren  v.  Flagg,  2  Pick.  450,  per    son    v.   Rannels,    6    Martin,    n.  s.   621; 
Parker,  C.  J.  Ripple  v.  Hippie,  1  Eawle,  386 ;  Craig  v. 

2  Warren  v.  Flacg,  2  Pick.  448 ;  Rob-    Brown,  1  Peters,  C.  C.  R.  352. 

inson  v.  Prescott,  4  N.  Ilamp.  450;  Maliu-  *  Drummond  v.  Magrauder,  9  Cranch, 

rin  V.  Bickford,  6  N.  Ilanip.  567 ;    Silver  122 ;  Craig  v.  Brown,  1  Pet.  C.  C.  R.  352. 

Lake  Bank  v.   Harding,  5  Ohio  R.  545 ;  The  judge's  certificate  is  the  only  compe- 

Thomas  v.  Robinson,  3  Wend.  267.     In  tent  evidence  of  this  tact.  Smith  t'.  Blagge, 

Connecticut  and  Vermont,  it  is  held,  that  if  1  Johns.  Cas.  238.     And  it  is  conclusive, 

the  justice  is  bound  by  law  to  keep  a  rec-  Ferguson  v.  Harwood,  7  Cranch,  408. 
ord  of  his  proceedings,  they  are   witlun  ^  Craig  r.  Brown,  1  I'ct.  C.  C.  R.  352. 

the  meaning  of  the  act  of  congress.     Bis-  [It  should  also  state  that  the  attestation  of 

sell  V.  Edwards,  5  Day,  363  ;  Stiirkweather  tiie  clerk  is  in  due  form.     Shown  i;.  Barr, 

V.  Loomis,  2  Venn.  573  ;  Blodget  v.  Jor-  11  Ired.  2'J6.] 

dan,  6  Verm.  580 ;  [Brown  v.  Edson,  23  «  Turner  v.  Waddington,  3  Wash.  126. 

Vt.  435.]      See  ace.  Scott  v.  Cleaveland,  And  being  thus  affixed,  and  certified  by 

3  Monroe,  62.  the   clerk,    it   proves   itself.      Dunlap    u. 

3  Scott  V.  Blanchard,  8   Martin,  n.  s.  Waldo,  6  N.  Hamp.  450. 

303  ;  Hunt  v.  Lyle,  8  Yerg.  142;  Barbour  "  Craig  r.  Brown,  1  Pet.  C.  C.  R.  352; 

V.  Watts,  2  A.  K.   Marsh.  290,  2U3;  Bal-     Ivirkland  r.  Smith,  2  Martin,  k.  s.  497. 
four  V.  Chew,  5  Martin,  x.  s.  517 ;  John-         '^  Thomas  v.  Tanner,  6  ^Monroe,  52. 


550  LAW   OF   E"\T[DENCE.  [PART   III. 

court,  and  this  attestation  is  certified  to  be  in  due  form  of  law, 

by  the  presiding-  judge,  it  will  be  presumed  that  the  ])aper  is  a  full 

copy  of  the  entire  record,  and  will  be  deemed  sufficient.-'     It  has 

also  been  held,  that  it  must  appear  from  the  judge's  certificate, 

that  at  the  time  of  certifying  he  is  the  presiding  judge  of  that 

court ;  a  certificate  that  he  is  "  the  judge  that  presided "  at  the 

time  of  the  trial,  or  that  he  is  "  the  senior  judge  of  the  courts  of 

law  "  in  the  state,  being  deemed  insufficient.^     The  clerk  also  who 

certifies  the  record  must  be  the  clerk  himself  of  the  same  court, 

or  of  its  successor,  as  above  mentioned ;   the  certificate  of  his 

under  clerk,  in  his  absence,  or  of  the  clerk  of  any  other  tribunal, 

office,  or  body,  being  held  incompetent  for  this  purpose.^ 

I      §  507.  An  office  copy  of  a  record  is  a  copy  authenticated  by  an 

officer  intrusted  for  that  purpose ;  and  it  is  admitted  in  evidence 

upon  the  credit  of  the  officer  without  proof  that  it  has  been  actually 

examined.^     Tiie  rule  on  this  subject  is,  that  an  office  copy,  in 

the  same  court,  and  in  the  same  cause,  is  equivalent  to  the  record ; 

but  in  another  court,  or  in  another  cause  in  the  same  court,  the 

copy  must  be  proved.^     But  the  latter  part  of  this  rule  is  applied 

only  to  copies,  made  out  by  an  officer  having  no  other  authority  to 

make  them,  tlian  the  mere  order  of  the  particular  court,  made  for 

the  convenience  of  suitors ;  for  if  it  is  made  his  duty  by  law  to 

furnish  copies,  they  are  admitted  in  all  courts  under  the  same 

jurisdiction.      And  we   have   already  seen,  that  in   the   United 

States  an  officer  having  the  legal  custody  of  public  records,  is,  ex 

officio,  competent  to  certify  copies  of  their  contents.^ 

CW,. 

1  Ferguson  v.  IIarwoocl,7  Crancli,408;  I  not  snfficient,  even  when  the  judge  certi- 
Edmiston  v.   Sclnvartz,  13  S.  &  U.  185;  I  ties   tliat  it   is   in   due   form.     Morris  v. 


Goodman  v.  James,  2  ilob.  Louis.  207.  |Patclnn,  24  N.  Y.  App.  394.] 

-  Stephenson  v.  Bannister,  3  Bibb,  369 ;  *  2  Pliil.  Evid.  131  ;  Bull.  N.  P.  229. 

Kirkland  r.  Smith,  2  Martin,  N.  s.  497 ;  ^  Dcnn  v.  Fulford,  2  Burr.  1179,  i)er 

[Settle  V.  Alison,  8  Geo.  201.]  Ld.  IMansfield.     Whether,  upon   trial   at 

•*  Attestation  by  an  under  elerk  is  in-  law   of  an  issue  out   of  chancery,  office 

sufficient.     Samson   v.    Overton,  4  Bibb,  copies  of  depositions  in  the  same  cause  in 

409.     So,  by  late  clerk  not  now  in  office,  chancery  are  admissible,  has  been  doubt- 

Donohoo  V.  Brannon,  1  Overton,  328.    So,  ed ;    but  the  better  opinion  is,  that  they 

by   clerk    of   the   council,   in   Maryland,  are  admissiljle.     Highfield  i'.  Peake,  1  M. 

Schnenzell   l\   Young,   3   H.  &  McHen.  &  Malk.   109(1827);    Studdy  ^^  Sanders, 

502.      See   further,    (^onkling's   I'ractice,  2  D.  &  Ky.  347 ;  Hennell  v.  Lyon,  1  B.  & 

p.  256;    1   Paine  &  Duer's  I'ractice,  480,  Alil.  142;   contra,  Burnand  v.  Nerot,  1  C. 

481.     [Tiie  authentication  of  the  record  of  &  P.  578  (1824). 

a  judgment  rendered  in  another  state  is  ^  Supra,  §  485.     But  his  certificate  of 

not  imjjaired  by  the  addition  of  a  super-  the  substance  or  purport  of  the  record  is 

fluous  certificate,  if  it  is  duly  accredited  inadmissible.      McGuire    v.    Sayward,   9 

by  the  other  certificates  required  bylaw.  Shepl.  230.     [*  Whenever  the  original  is 

Young    V.    Chandler,    13    IJellovvs,   252.]  evidence  in  itself,  as  a  public  record  or 

[  *  The  certificate  of  the  deputy  clerk  is  document,  its  contents  may  be  proved  by 


CHAP,  v.]  RECORDS   AND   JUDICIAL   WRITINGS.  651 

§  508.  The  proof  of  records,  by  an  examined  copy,  is  by  pro- 
ducing a  witness  wlio  has  compared  the  copy  with  the  original, 
or  with  what  the  officer  of  the  court  or  any  other  person  read,  as 
the  contents  of  the  record.  It  is  not  necessary  for  the  persons 
examining  to  exchange  papers,  and  read  them  alternately  both 
ways.^  But  it  should  appear  that  the  record,  from  which  the 
copy  was  taken,  was  found  in  the  proper  place  of  deposit,  or  in 
the  hands  of  the  officer,  in  whose  custody  the  records  of  the  court 
are  kept.  And  this  cannot  be  shown  by  any  light,  reflected  from 
the  record  itself,  which  may  have  been  improperly  placed  where 
it  was  found.  Nothing  can  be  borrowed  ex  visceribus  judicu,  until 
the  original  is  proved  to  have  come  from  the  proper  court.^  And 
the  record  itself  must  have  been  finally  completed,  before  the  copy 
is  admissible  in  evidence.  The  minutes  from  which  the  judgment 
is  made  up,  and  even  a  judgment  in  paper,  signed  by  the  master, 
are  not  proper  evidence  of  the  record.^ 

§  509.  If  the  record  is  lost,  and  is  ancient,  its  existence  and 
contents  may  sometimes  be  presumed  ;  "^  but  whether  it  be  ancient 
or  recent,  after  proof  of  the  loss,  its  contents  may  be  proved,  like 
any  other  document,  by  any  secondary  evidence,  where  the  case 
does  not,  from  its  nature,  disclose  the  existence  of  other  and  better 
evidence.^ 

an  examined  copy.     Reed  v.  Lamb,  6  Jur.  order  for  that  entry,   or   by   a    general 

N.  s.  828.     The  same  is  true  of  the  regis-  order,   or  by   a  general   and   recognized 

try  of  marriages  kept  in  duj)H(;ate  by  the  usage   and    practice,   which    presupposes 

East  Lidia  Company  in  London,  the  mar-  such  an  order.     Head  v.  Sutton,  2  Cush. 

rlages  being   solemnized  in  Lidia.     Rat-  115,   123;  8ayles  v.  Briggs,  4  Met.  421, 

cUtf  f.  Ratditf,  5  Jur.  n.  s.  714.]  424;    Tillotson  v.  Warner,  3  Gray,  574, 

1  Reid  V.  Margison,  1  Campb.  469  ;  577.  Where  it  is  the  practice  of  the  clerks 
Gyles  V.  Hill,  Id.  471,  n. ;  Fyson  v.  Kemp,  to  extend  tlie  judgment  of  the  courts  from 
6  C.  &  P.  71 ;  Rolf  V.  Dart,  2  Taunt.  52;  the  minutes  and  papers  on  file,  the  record 
Hill  V.  Packard,  5  Wend.  387;  Lynde  v.  thus  extended  is  deemed  by  the  court  the 
Judd,  3  Day,  4'.l'.t.  original   record.      Willard   v.    Harvey,   4 

2  Adamtliwaite  v.  Synge,  1  Stark.  R.  Foster,  344. J 

183;  [Woods  v.  Ranks,  14  N.  Hamp.  101.]  *  Bull.  N.  P.  228;  Greene  v.  Proude,  1 

8  Bull.  N.  P.  228;  Rex  v.  Smith,  8  B.  Mod.  117,  per  Lord  Hale. 

&  C.  341 ;    Godefroy  v.  Jay,  3  C.  &  P.  "  See  s>ipra,  §  84,  note  (2),  and  cases 

192;  Lee  v.  Meecock,  5  Esp.  177;  Rex  v.  there  cited.     See  also  Adams  v.  Betz,  1 

Bellamy,  Ry.  &  M.  171;  Porter  r.  Coo-  Watts,   425,    428;    Stockbridge   r.   West 

per,  6  C.  &  P.  354.     But  the  minutes  of  a  Stockbridge,  12  Mass.  400 ;  Donaldson  v. 

judgment  in  the  House  of  Lords  are  the  Winter,    1    Miller,  R.   137  ;   Newcomb  v. 

judgment  itself,  wliich  it  is  not  the  prac-  Druunuoud,   4   Leigh,   57;    Bull.    N.   P. 

tice  to  draw  up  in  form.     Jones  i'.  Ran-  228 ;  Knight  v.  Dauler,  Hard.  323 ;  Anon, 

dall,   Cowp.  17.      [The  clerk's  docket  is  1  Salk.  284,  cited  per  Holt,  C.  J. ;  Gore  r. 

the   record   until  the  record  is  fully  ex-  Ehvell,  9  Shepl.  442.     [A  paper,  certified 

tended,  and  the  same  rules  of  presumed  by  a  justice  of  the  peace  to  be  a  copy  of  a 

verity  apply  to  it  as  to  the  record.    Every  record  of  a  case  before  him  is  admissible 

entry  is  a'statement  of  the  act  of   the  in  evidence  of  such  proceedings,  altJKmgh 

court,  and  must  be  presumed  to  be  made  made  by  him  after  the  loss  of  the  original, 

by   its   direction,   either   by  a   particular  and  pending  a  U-ial  in  which  he  had  testi- 


552  LAW   OF   EVIDENCE.  [PART   III. 

§  510.  A  venUet  is  sometimes  admissible  in  evidence,  to  prove 
the  finding  of  some  matter  of  reputation,  or  custom,  or  particular 
right.  But  here,  though  it  is  the  verdict,  and  not  the  judgment, 
which  is  the  material  thing  to  he  shown,  yet  the  rule  is,  that, 
where  the  verdict  was  returned  to  a  court  having  power  to  set 
it  aside,  the  verdict  is  not  admissible,  without  producing  a  copy 
of  the  judgment  rendered  upon  it ;  for  it  may,  be  that  the  judg- 
ment was  arrested,  or  that  a  new  trial  was  granted.  But  this 
rule  docs  not  hold  in  the  case  of  a  verdict  upon  _a^  issue  out 
of  chancery,  because  it  is  not  usual  to  enter  up  judgment  in  such 
cases.i  Neither  does  it  apply  where  the  object  of  the  evidence  is 
merely  to  establish  the  fact  that  the  verdict  was  given,  without 
regard  to  the  facts  found  by  the  jury,  or  to  the  subsequent  pro- 
ceedings in  the  cause. ^  And  where,  after  verdict  in  ejectment, 
the  defendant  paid  the  plaintiff's  costs,  and  yielded  up  the  posses- 
sion to  him,  the  proof  of  these  facts,  and  of  the  verdict,  has  been 
held  sufficient  to  satisfy  the  rule,  without  proof  of  a  judgment.  ^ 

§  511.  A  decree  in  chancer//  may  be  proved  by  an  exemplifica- 
tion, or  by  a  sworn  copy,  or  by  a  decretal  order  in  paper,  with 
proof  of  the  bill  and  answer.*  And  if  the  bill  and  answer  are 
recited  in  the  order,  that  has  been  held  sufficient,  without  other 
proof  of  them.5  But  though  a  former  decree  be  recited  in  a  sub- 
sequent decree,  this  recital  is  not  proper  evidence  of  the  former.^ 
The  general  rule  is,  that,  where  a  party  intends  to  avail  himself 
of  a  decree,  as  an  adjudication  upon  the  subject-matter,  and  not 
merely  to  prove  collaterally  that  the  decree  was  made,  he  must 

fied  to  its  contents.     Tillotson  v.  Warner,  a  copy  of  the  verdict  is  received  without 

3   Gray,   574,  577.      The  contents   of  a  jjroof  of  the  judgment;   the  latter  being 

complaint  and  warrant,  in  a  criminal  case,  presumed,   until   the   contrary  is   sliown. 

lost  alter  being  returned  into  court,  may  Deloali  v.  Worke,  3  Hawks,  36.     See  also 

be   proved   by  secondary  evidence  ;   and  Evans  w-  Thomas,  2  Stra.  833  ;  Dayrell  v. 

witnesses  to  prove  its  contents  may  state  Bridge,  Id.  1204 ;  Thurston  v.  Slatford,  1 

the  substance  thereof  without  giving  the  Salk.  284.     If  the  docket  is  lost  before 

exact  words.     Commonwealth  v.  Koark,  the  record  is  made  up,  it  will  be  consid- 

8  Cush.  210,  212.     See  also   Simpson  v.  ered  as  a  loss  of  the  record.     Pruden  v. 

Norton,  45  Maine,  281 ;  Hall  v.  Manches-  Alden,  22  Pick.  184. 
ter,  40  N.  II.  410.]  ■^  Barlow  v.   Dupuy,   1  Martin,  n.  s. 

i  Bull.  N.  P.  234 ;  Pitton  v.  Walter,  1  442. 
Stra.  162 ;  Fisher  r.  Kitchingman,  Willes,  ■'  Schaeffer  v.  Kreitzer,  6  Binn.  430. 

367;  Ayrey  r.   Davenport,   2  New   Hep.  *  Trowell  v.   Castle,  1   Keb.   21,  con- 

474 ;    Donaldson   v.    Jude,    2    Bibb,    60.  firmed  by  Bailey,  B,.  in  Blower  v.  Iloilis, 

Hence  it  is  not  necessary,  in  Neiv  York,  1  Cromj).  &  Mces.  396 ;  4  Com.  Dig.  1)7, 

to  produce  a  copy  of  tlie  judgment  upon  tit.  Evidence,  C.   1 ;    Grealey  on  Evid.  p. 

a  verdict  given  in  a  justice's  court,  the  109. 

justice  not  having  power  to  set  it  aside.  ^  Bull.  N.  P.  244;  1  Keb.  21. 

Eelter    v.    MuUiner,    2    Johns.    181.     In  "^  Winans   v.    Dunham,    5   Wend.  47; 

North  Carolina,  owing  to  an  early   loose-  Wilson  v.  Conine,  2  Johns.  280. 
ness  of  practice  in  making  up  the  record, 


CHAP,  v.]  RECORDS   AND  JUDICIAL  WRITINGS.  553 

show  tlic  proceedings  upon  which  the  decree  was  founded.  "  The 
whole  record,"  says  Chief  IJaron  Comyns,  "  which  concerns  the 
matter  in  question,  ought  to  be  produced."  ^  But  where  the  decree 
is  offered  merely  for  proof  of  the  res  ipsa,  namely,  the  fact  of  the 
decree,  here,  as  in  the  case  of  verdicts,  no  proof  of  any  other 
proceeding  is  required. ^  The  same  rules  apply  to  sentences  in  the 
admiralty,  and  to  judgments  in  courts  baron,  and  other  inferior 
courts.'^ 

§  512.  The  proof^  of  an  answer  in  chancery  may,  in  civil  cases, 
be  made  by  an  examined  copy.*  Regularly,  the  answer  cannot 
be  given  in  evidence  without  proof  of  the  bill  also,  if  it  can  be  had.^ 
But  in  general,  proof  of  the  decree  is  not  necessary,  if  the  answer 
is  to  be  used  merely  as  the  party's  admission  under  oath,  or  for 
the  purpose  of  contradicting  him  as  a  witness,  or  to  charge  him 
upon  an  indictment  for  perjury.  The  absence  of  the  bill,  in  such 
[cases,  goes  only  to  the  effect  and  value  of  the  evidence,  and  not 
[to  its  admissibility.^  In  an  indictment  for  perjury  in  an  answer, 
it  is  considered  necessary  to  produce  the  original  answer,  together 
with  proof  of  the  administration  of  the  oath ;  but  of  this  fact,  as 
jwell  as  of  the  place  where  it  was  sworn,  the  certificate  of  the 
master,  before  whom  it  was  sworn,  his  signature  also  being  proved, 
is  sufficient  prwid  facie  evidence.^  The  original  must  also  be 
produced  on  a  trial  for  forgery.  In  civil  cases,  it  will  be  presumed 
[that  the  answer  was  made  upon  oath.^  But  whether  the  answer 
;be  proved  by  production  of  the  original,  or  by  a  copy,  and  in  what- 
ever case,  some  proof  of  the  identity  of  the  party  will  be  requisite. 
This  may  be  by  proof  of  his  handwriting ;  which  was  the  reason 
of  the  order  in  chancery  requiring  all  defendants  to  sign  their 
answers ;  or  it  may  be  by  any  other  competent  evidence.^ 

1  4  Com.  Diij.  tit.  Evnkiice,  A.  4;  2  2  Burr.  1189;  Rex  v.  Benson,  2  Campb. 
riiil.  Evi.l.  138^  139.  Tlie  rule  equally  508;  Rex  v.  Spencer,  Ry.  &  M.  97.  The 
applies  to  decrees  of  tlie  ecclesiastical  jurat  is  not  conclusive  as  to  the  place, 
courts.  Leake  v.  Marquis  of  Westnieath,  \lsx  v.  Enibilen,  9  East,  437.  The  same 
2  M.  &  Rob.  394.  strictness  seems  to  be  required  in  an  ac- 

2  Jones  r.  Randall,  Cowp.  17.  tion  on  the  case  for  a  malicious  criminal 
8  4   Com.   Dig.   97,   98,   tit.  Evidence,    prosecution.     16  East,  340 ;  2  Thil.  Evid. 

C.  1.  140.     Sid  (itiare. 

*  Ewer  V.  Ambrose,  4  B.  &  C.  25.  »  Bull.  N.  P.  288. 

6  1   Gilb.   Evid.   55,  56;    Gresley  on  "  Rex  r.  Morris,  2  Burr.  1189 ;  Rex  i\ 

Evid.  pp.  108,  109.  Benson,    2    Campb.   508.     It  seems   that 

«  Ewer  V.   Ambrose,  4   B.  &  C.  25;  slight  evidence  of  identity  will  be  deemed 

Rowe   r.   Brenton,  8  B.  &  C.  737,  765;  prliiui    /lirle    sufficient.      In     llennell    v. 

Ladv  Dartmouth  i:  Roberts,  16  East,  334,  Lyon,  1   B.  &  Aid.   182,  coincidence  ot 

339,  340.  name,  and  character  as  administrator,  was 

•  Bull.  N.  P.  238,  239 ;  Rex  v.  Morris,  held  sufficient ;    and  Lord   Ellenborougli 

VOL.  I.  47 


554 


LAW  OF   EVIDENCE. 


[part  III. 


§  513.  The  judgments  of  inferior  courts  are  usually  proved  by 
producing  from  the  proper  custody  the  book  coiitaiuing  the  pro- 
ceedings. And  as  the  proceedings  in  these  courts  are  not  usually 
made  up  in  form,  the  minutes,  or  examined  copies  of  them,  will 
be  admitted,  if  they  are  perfect.^  If  they  are  not  entered  in  books, 
they  may  be  proved  by  the  officer  of  the  court,  or  by  any  other 
competent  person.^  In  either  case,  resort  will  be  had  to  the  best 
evidence,  to  establish  the  tenor  of  the  proceedings ;  and,  therefore, 
where  the  course  is  to  record  them,  which  will  be  presumed  imtil 
the  contrary  is  shown,  the  record,  or  a  copy,  properly  authenti- 
cated, is  the  only  competent  evidence.^     The  caption  is  a  necessary 


thought,  that  coincidence  of  name  alone 
ouglit  to  be  enough  to  call  upon  the  party 
to  show  that  it  was  some  other  perspn. 
See  also  HodgkLnson  v.  Willis,  3  Campb. 
401. 

1  Arundel  v.  White,  14  East,  216  ; 
Fisher  v.  Lane,  2  W.  Bl.  834;  Rex  v. 
Smith,  8  B.  &  C.  342,  per  Lord  Tenter- 
den.  [The  original  papers  and  record  of 
proceedings  in  insolvency,  dejiosited  in 
the  proper  office  and  produced  by  the 
proper  officer,  are  admissible  in  evidence 
equallj'  with  certified  copies  thereof,  al- 
though such  certified  copies  are  made 
prima  facie  evidence  by  statute.  Odiorne 
V.  Bacon,  6  Cush.  185.  See  also  Miller  v. 
Hale,  26  Pcnn.  St.  R.  432.] 

^  Dyson  v.  Wood,  3  B.  &  Co.  449,  4-51. 

*  See,  as  to  justices'  courts,  Mathews 
V.  Houghton,  2  Fairf  377 ;  Holcomb  v. 
Cornish,  8  Conn.  375,  380;  Wolf  w.  Wash- 
burn, 6  Cowen,  261 ;  Webb  v.  Alexander, 
7  Wend.  281,  286.  As  to  probate  courts, 
Chase  v.  Hathaway,  14  Mass.  222,  227 ; 
Judge  of  Probate  v.  Briggs,  3  N.  Hamp. 
30'J.  As  to  justices  of  the  sessions.  Com- 
monwealth V.  Bolkom,  3  Pick.  281.  [The 
copy  of  a  record  of  a  justice  of  the  peace 
need  not,  in  Massachusetts,  bear  a  seal. 
Commonwealth  v.  Downing,  4  Gray,  29, 
80.  And  a  copy  of  the  record  of  a  case 
before  a  justice  of  the  peace,  described  as 
such  in  the  record,  is  sutficiently  attested, 
if  attested  by  him  as  "justice,"  without 
addhig  thereto  the  words  "  of  the  peace." 
lb.  The  contents  of  a  justice's  record 
should  be  proved  by  an  authenticated 
copy.  His  certificate  alleging  what  facts 
appear  by  the  record  is  not  receivable  as 
proof  English  v.  Sprague,  33  Maine, 
440.  See  also,  as  to  records  of  a  justice 
of  the  peace,  Brown  if.  Edson,  23  Vt.  325. 
(A  record  made  by  a  justice  of  the  peace, 
lor  by  a  justice  of  a  police  court  in  a  crim- 
jinal  case,  which  does  not  state  that  an 
(appeal  was  claimed  fi-oni  his  decision  by 


.the  party  convicted,  is  conclusive  evi- 
dence, in  an  action  brought  against  the 
justice  for  refusing  to  allow  the  appeal 
^nd  committing  the  party  to  prison,  that 
jiio  such  appeal  was  claimed.  Wells  v. 
Stevens,  2  Gray,  115,  118.  See  also  Ken- 
dall V.  Powers,  4  Met.  553.]  [  *  The  law 
of  the  different  states,  as  to  what  is  compe- 
tent evidence  of  judicial  records  within  the 
same  state,  is  a  good  deal  relaxed  from  the 
requirements  of  the  act  of  congress,  or  of 
the  common  law.  It  has  been  held,  that 
the  records  of  an  inferior  court  may  be 
proved  by  production  of  the  original,  or 
by  copy  duly  authenticated,  or  by  produc- 
tion of  the  original  pajiers.  State  v.  Bart- 
lett,  47  Maine,  396.  And  the  copy  is  suffi- 
ciently authenticated  by  the  words,  "  a  true 
copy,"  signed  by  the  magistrate  at  the 
end  of  the  copy.  Commonwealth  v.  Ford, 
14  Gray,  399.  And  it  is  no  fatal  objection 
to  a  copy  of  record,  that  the  papers  are 
certified  separately.  Goldstone  v.  David- 
son, 18  Cal.  41.  And  a  justice's  judg- 
ment may  be  proved  by  the  production 
of  the  original  papers,  verified  by  his  tes- 
timony with  the  docket  entry  of  the 
justice,  if  no  extended  record  has  been 
made.  McGrath  v.  Seagrave,  2  Allen, 
443.  It  has  been  held  in  some  of  the 
states,  that  such  evidence  is  not  suf- 
ficient; Strong'  f.  Bradley,  13  Vt.  9: 
unless  where  the  justice  had  deceased 
without  perfecting  his  record ;  Story  v. 
Kimball,  6  Vt.  541.  And  when  the  copy 
consisted  of  numerous  papers,  bound  to- 
gether with  a  tape,  with  nothing  upon  the 
separate  papers  to  identity  or  authen- 
ticate tliem,  preceded  by  a  certificate 
"that  the  gapers  each  and  all  were  true 
copies  of  record,"  it  was  held  insufficient 
as  coming  from  a  district   court  of  the 

I  United  States  in  another  state.  Pike  v. 
Crehore,  40  Maine,  503.  If  the  court  has 
no  clerk,  the  judge  may,  under  the  act  of 
congress,  act  both  as  clerk  and  presiding 


CHAP,  v.] 


RECORDS   AND   JUDICIAL   WRITINGS. 


655 


part  of  the  record ;  and  the  record  itself,  or  an  examined  copy,  is 
the  only  legitimate  evidence  to  prove  it.^ 

§  514.  The  usual  modes  of  authenticating  foi-eign  judgments 
are,  either  by  an  exemplification  of  a  copy  under  the  great  seal  of 
a  state  ;  or  by  a  copy,  proved  to  be  a  true  copy  by  a  witness  who 
has  compared  it  with  the  original ;  or  by  the  certificate  of  an  officer, 
properly  authorized  by  law  to  give  a  copy ;  which  certificate  must 
itself  also  be  duly  authenticated.^  If  the  copy  is  certified  under 
the  hand  of  the  judge  of  the  court,  his  handwriting  must  be 
proved.^  If  the  court  has  a  seal,  it  ought  to  be  affixed  to  the  copy, 
and  proved ;  even  though  it  be  worn  so  smooth,  as  to  make 
no  distinct  impression.*  And  if  it  is  clearly  proved  that  the 
court  has  no  seal,  it  must  be  shown  to  possess  some  other  requi- 
sites to  entitle  it  to  credit.^  If  the  copy  is  merely  certified  by  an_ 
officer  of  the  court,  without  other  proof,  it  is  inadmissible.*^ 
'^'  [*  §  514a.  In  a  recent  case'''  before  the  House  of  Lords,  it  was 
determined,  that,  in  fixing  the  construction  of  a  foreign  document 
in  the  courts  of  that  country,  the  court  are  bound  to  avail  them- 
selves of  every  aid,  so  as  to  reach  the  same  result  which  would  be 


judge.  State  v.  Hinchman,  27  Penn.  St. 
479.  The  original  of  a  writ  of  attach- 
ment and  execution  is  as  good  evidence 
as  an  authenticated  copy.  Day  i-.  Moore, 
13  Gray,  522.  The  copy  coming  from  an 
inferior  court,  with  tlie  transfer  of  the 
case,  is  good  evidence  to  show  what  was 
a-ljudicated.  Brackett  v.  Hoitt,  20  N.  H. 
257.  A  record,  certified  under  the  seal 
of  the  court,  is  sufficient  evidence  that  it 
is  a  court  of  record.  Smith  v.  Redden,  5 
Har.  321.  See  also  Lancaster  v.  Lane, 
ly  111.242;  Brush  v.  Blanchard,  19  111. 
31 ;  Magee  v.  Scott,  32  I'enn.  St.  539.] 

1  Kex  V.  Smith,  8  B.  &  C.  341,  per 
Baylej',  J. 

2  Church  V.  Huhbart,  2  Cranch,  228, 

iper  Marshall,  C.  J. ;    supra,  §   488,   and 
cases  there  cited.     Proof  by   a  witness, 
.  who  saw  the  clerk  affix  the  seal  of  the 
•court,  and  attest  the  copy  with  his  own 
i  name,    tlie    witness   having  assisted  him 
;  to  compare  it  with  the  original,  was  held 
i  sufficient.      Buttrick    i\    Allen,    8    Mass. 
273.     So,  where  the  witness  testified  that 
the  court  had  no  seal.     Packard  v.  Hill, 
7  Cowen,  434. 

3  Henry  v.  Adey,  3  East,  221;  Bu- 
chanan V.  Kucker,  1  Campb.  63.  The 
certificate  of  a  notary-public,  to  this  fact 
was  deemed  sufficient,  in  Yeaton  v.  Fry, 
6  Cranch,  335. 


*  Cavan  v.  Stewart,  1  Stark.  R.  525 ; 
Flindt  V.  Atkins,  3  Campb.  215,  n. ;  Gar- 
dere  v.  Columbian  Ins.  Co.  7  Johns.  514, 

5  Black  V.  Ld.  Braybrook,  2  Stark.  R. 
7,  per  Ld.  Ellenborough ;  Packard  v.  Hill, 
7  Cowen,  434. 

^  Appleton  V.  Ld.  Braybrook,  2  Stark. 
Tl.  6  ;  0  M.  &  S.  34,  s.  c. ;  Thompson  v. 
Stewart,  3  Conn.  171.  [Where  a  copy  of 
a  judgment  recovered  in  Canada  was  cer- 
tiiied  by  A,  as  clerk,  and  purported  to  be 
under  the  seal  of  the  court,  and  a  witness 
testified  that  he  had  long  known  A  in  the 
capacity  of  clerk,  and  tliat  he  helped  him 
to  compare  the  copy  with  the  original, 
and  knew  it  to  be  correct,  and  ti'om  his 
acquaintance  with  the  seal  of  the  com-t, 
he  knew  that  the  seal  affixed  to  the  copy 
was  genuine,  it  was  held,  that  the  copy 
was  sutKcicntly  authenticated.  Pickard 
V.  Bailey,  6  Foster,  152.  A  copj'  of  the 
civil  code  of  Prance,  purjiorting  to  be 
printed  at  the  roj'al  press  in  Paris,  and 
received  in  the  course  of  our  international 
exchanges,  with  tlie  indorsement  "  La 
Garde  des  Sceaux  de  France  a  la  cour 
Supreme  des  Etats  Unis,"  is  admissible 
in  the  courts  of  tlie  United  States  as  evi- 
dence of  the  law  of  France.  Ennis  v. 
Smith,  14  How.  U.  S.  400.) 

■?  t*l^i  Sora  (Duchess)  v.  Phillips,  33 
Law,  J.  Ch.  H.  L.  129. 


556  LAW    OF    EVIDENCE.  [PART   III. 

obtained  in  the  courts  of  the  foreign  forum.  For  this  end,  the 
following  particulars  nmst  be  regarded :  (1.)  An  accurate  trans- 
lation ;  (2.)  an  explanation  of  all  terms  of  art ;  (3.)  information 
as  to  any  special  law ;  (4.)  as  to  any  peculiar  rule  of  construction 
of  the  foreign  state,  affecting  the  question.  In  regard  to  wills 
executed  and  proved  in  a  foreign  country,  where  it  becomes  neces- 
sary to  enforce  their  provisions  in  another  forum,  it  is  gener- 
ally sufficient  to  produce  an  exemplification  of  the  foreign  decree 
allowing  the  will  and  probate,  and  to  record  the  same  in  the  proper 
office  of  probate,  in  the  forum  where  such  evidence  is  to  be 
used.i] 

§  515.  In  cases  of  inquisitions  post  mortem  and  other  private 
offices,  the  return  cannot  be  read,  without  also  reading  the  commis- 
sion. But  in  cases  of  more  general  concern,  the  commission  is  of 
such  public  notoriety,  as  not  to  require  proof.  ^ 

§  516.  With  regard  to  the  proof  of  depositions  in  chancery,  the 
general  rule  is,  that  they  cannot  be  read,  without  proof  of  the  bill 
and  answer,  in  order  to  show  that  there  was  a  cause  depending, 
as  well  as  who  were  the  parties,  and  what  was  the  subject-matter 
in  issue.  If  there  were  no  cause  depending,  the  depositions  are 
but  voluntary  affidavits ;  and  if  there  were  one,  still  the  deposi- 
tions cannot  be  read,  unless  it  be  against  the  same  parties,  or 
those  claiming  in  privity  with  them.^  But  ancient  depositions, 
given  when  it  was  not  usual  to  enroll  the  pleadings,  may  be  read 
without  antecedent  proof.*  They  may  also  be  read  upon  proof  of 
the  bill,  but  without  proof  of  the  answer,  if  the  defendant  is  in 
contempt,  or  has  had  an  opportunity  of  cross-examining,  which  he 
chose  to  forego.^  And  no  proof  of  the  bill  or  answer  is  neces- 
sary, where  the  deposition  is  used  against  the  deponent,  as  his 
own  declaration  or  admission,  or  for  the  purpose  of  contradicting 
him  as  a  witness.'^  So,  where  an  issue  is  directed  out  of  chancery, 
and  an  order  is  made  there,  for  the  reading  of  the  depositions 
upon  the  trial  of  the  issue,  the  court  of  law  will  read  them  upon 
the  order,  without  antecedent  proof  of  the  bill  and  answer,  pro- 
vided the  witnesses  themselves  cannot  be  produced.'^ 

1  Isliam  V.  Gibljons,  1  Bradf.  Sur.  Rep.  ^  Cazenove  v.  Vaughan,  1  M.  &  S.  4 ; 
G9.]  Carrin<j;ton  v.  Carnock,  2  Sim.  567. 

2  Bull.  N.  P.  228,  229.  «  Highfield  v.  Peake,  1   M.   &  Malk. 

3  2  Phil.  Evid.  149;  Gresley  on  Evid.  109;  supni,  §  512. 

185;  1  Gilb.  Evid.  5(3,  57.  "  Palmer  v.   Ld.   Aylesbury,  15  Ves. 

*  1  Gilb.  Evid.  f54;  Gresley  on  Evid.  176;  Gresley  on  Evid.  185;  Bayley  v. 
185 ;  Bayley  v.  Wylie,  6  Esp.  85.  Wylie,  6  Esp.  85. 


CHAP,  v.]  RECORDS    AND    JUDICIAL    WRITINGS.  557 

§  517,  Depositions  taken  upon  interrogatories,  under  a  special 
commission,  cannot  be  read  without  proof  of  the  commission,  under 
which  they  were  taken ;  together  with  tlie  interrogatories,  if  they 
can  be  fonnd.  The  absence  of  the  interrogatories,  if  it  renders 
the  answers  obscure,  may  destroy  their  effect,  but  does  not  prevent 
their  being  read.^  Both  depositions  and  affidavits,  taken  in  another 
domestic  triljunal,  may  l)e  proved  by  examined  copies.^ 

§  518.  Testaments^  in  England,  are  proved  in  the  ecclesiastical 
courts ;  and  in  the  United  States,  in  those  courts  which  have  been 
specially  charged  with  the  exercise  of  this  branch  of  that  jurisdic- 
tion ;  generally  styled  courts  of  probate,  but  in  some  states 
known  by  other  designations,  as  orphans'  courts,  &c.  There  arje 
two  modes  of  proof,  namely,  the  common  form,  which  is  upon  the 
oath  of  the  executor  alqnc^  before  the  court  ha\'ing  jurisdiction  of 
the  probate  of  wills,  without  citing  the  parties  interested ;  and  the 
more  solemn  form  of  law,j;?er  testes,  upon  due  notice  and  hearing 
of  all  parties  concerned/  The  former  mode  has,  in  the  United 
States,  fallen  into  general  disuse.  By  the  common  law,  the  eccle- 
siastical courts  have  no  jurisdiction  of  matters  concerning  the 
realty ;  and  therefore  the  probate,  as  far  as  the  realty  is  con- 
cerned, gives  no  validity  to  the  will.*  But  in  most  of  the  United 
States,  the  probate  of  the  will  has  the  same  effect,  in  the  case  of 
real  estate,  as  in  that  of  the  i)ersonalty ;  and  where  it  has  not,  the 
effect  will  be  stated  hereafter.^  This  being  the  case,  the  present 
general  course  is  to  deposit  the  original  will  in  the  registry  of  the 
court  of  probate,  delivering  to  the  executor  a  copy  of  the  will,  and 
an  exemplification  of  the  decree  of  allowance  and  probate.  And 
in  all  cases,  where  the  court  of  probate  has  jurisdiction,  its  decree 
is  the  proper  evidence  of  the  probate  of  the  will,  and  is  proved 
in  the  same  manner  as  the  decrees  and  judgments  of  other 
courts.^  A  court  of  common  law  will  not  take  notice  of  a  will, 
as  a  title  to  personal  property,  until  it  has  been  thus  proved "  and 
where  the  will  is  required  to  be  originally  proved  to  the  jury,  as 

1  Rowe  V.  Brenton,  8  B.  &  C.  737,  7G5.         «  Supra,   §    501-509,    513 ;    Cliase    v. 

2  Supra,    §§   507,   508 ;    Highfield    v.  Hathaway,  li  Mass.  '2:22,  1»27 ;  Judge  of 
IPeake,  1  M.  &  Malk.    110.     In   criminal  Trobate    v.    Briggs,    3    N.    IIamp._  309 ; 
Lases,  some  proof  of  identity  of  the  per-  Farnsworth  v.  Briggs,  6  N.  llanip.  5G1. 
\on  is  requisite.     Supra,  §  512.  "  Stone  v.  Forsytli,  2  Doug.  707.     The 

^  2  Bl.  Comm.  508.  character  of  executor  may  bo  proved  by 

*  Hoe  c.  ISleltliorpe,  3  Salk.  154;  Bull,     the     act-book,     without    producing     the 

N.  P.  245,  24tj.  ]n-()bato  of  the  will.     Cox  v.  AUinghani, 

^  See    Infra,    §   550,   aud  vol.   2,   tit.    Jacob,  R.  514.    And  see  Doe  v.  Jlew,  7 

Wills,  §  072.  Ad.  &  El.  239. 

47* 


558  LAW   OF   EVIDENCE.  [PART   III. 

documentary  evidence  af  title,  it  is  not  permitted  to  be  read,  unless 
it  bears  the  seal  of  the  ecclesiastical  court,  or  some  other  mark  of 
authentication. 1 

§  519.  Letters  of  administration  are  granted  under  the'seal  of  the 
court,  having  jurisdiction  of  tlie  probate  of  wills ;  and  the  general 
course  in  the  United  States,  as  in  the  case  of  wills,  is  to  pass  a 
formal  decree  to  that  effect,  which  is  entered  in  the  book  of 
records  of  the  court.  The  letter  of  administration,  therefore,  is 
of  the  nature  of  an  exemplification  of  this  record,  and  as  such 
is  received  without  other  proof  But  where  no  formal  record  is 
drawn  up,  the  book  of  acts,  or  the  original  minutes  or  memorial 
of  the  appointment,  or  a  copy  thereof  duly  authenticated,  will  be 
•  received  as  competent  evidence.^ 

I      §  520.  Examinations  of  prisoners  in  criminal  cases  are  usually 

I  .proved  by  the  magistrate  or  clerk  who  wrote  them  down.^    But 

1  there  must  be  antecedent  proof  of  the  identity  of  the  prisoner 

I  and   of  the   examination.      If  the  prisoner    has   subscribed    the 

j  examination  with  his  name,  proof  of  his  handwriting  is  sufficient 

1  evidence   that  he  has   read   it ;   but  if  he  has  merely  made  his 

mark,  or  has   not  signed  it  at  all,  the  magistrate  or  clerk  must 

identify  the  prisoner,  and  prove  that  the  writing  was  duly  read 

to  him,  and  that  ho  assented  to  it.'^ 

§  521.  In  regard  to  tlie  froof  of  writs,  tlie  question  whether 
this  is  to  be  made  by  production  of  the  writ  itself,  or  by  a  copy, 
depends  on  its  having  been  returned  or  not.  If  it  is  only  mat- 
ter of  inducement  to  the  action,  and  has  not  been  returned,  it  may 
be  proved  by  producing  it.  But  after  the  writ  is  returned,  it 
has  become  matter  of  record,  and  is  to  be  proved  by  a  copy 
from  the  record,  this  being  the  best  evidence.^  If  it  cannot  be 
found  after  diligent  search,  it  may  be  proved  by  secondary  evi- 
dence, as  in  other  cases.^     The  fact,  however,  of  the  issuing  of 

1  Rex    V.   Barnes,   1    Stark.   R.   243 ;  ters,  608,  026.     See  also  Bull.  N.  P.  246  ; 

Shumway  v.  Holbrook,  1  Pick.  114.     See  Elden  v.  Keddel,  8  East,  187 ;  2  M.  &  S. 

further    2    Phil.    Evid.   172;    Gorton    v.  567,  per  Bayley,  J.;  2  Phil.  Evid.  172, 

Dyson,  1  B.  &  B.  221,  per  Richardson,  J.  173 ;  1  Stark.  Evid.  255. 

■^  The  practice  on  this  subject  is  vari-  ^  2  Hale,  P.  C.  52,  284. 

ous  in  the  different  states.     See  Dicken-  *  See  supra,  §§  224,  225,  227,  228. 

son  V.  McCraw,  4  Rand.  1-58;  Seymour  v.  ^  Bull.  N.  P.  234;  Foster  v.  Trull,  12 

Beacli,  4  Verm.  493 ;   Jackson  v.   Robin-  Johns.  456 ;    Pigot  v.   Davis,    8   Hawks, 

son,  4  Wend.  436 ;  Farnsworth  v.  Briggs,  25 ;  Frost  v.   Shapleigh,  7  Greenl.   236 ; 

6  N.  Ilamp.   561;    Iloskins   v.   Miller,  2  Brusli  v.  Taggart,  7  Johns.  19;  Jenner  v. 

Devereaux,  360  ;  Owings  v.  Beall,  1  Lit-  Jolliffe,  6  Johns.  9. 
tell,    257,    259 ;     I5ro\vning    v.    Huff,    2  6  Supra,  §  84,  note  \2) 

Bailey,  174,  179;  Owings  v.  Hull,  9  Pe- 


CHAP,  v.]  RECORDS   AND   JUDICIAL   WRITINGS.  559 

the  writ  may  sometimes  be  proved  by  the  admission  of  tlic  party 
against  whom  it  is  to  be  proved.^  And  the  precise  time  of  suhig 
it  out  may  be  shown  by  parol. ^ 

§  522.  We  proceed  in  the  next  place,  to  consider  the  admis- 
sibility AND  EFFECT  OF  RECORDS,  as  instruments  of  evidence.  The 
rules  of  law  upon  this  su1)ject  are  founded  upon  these  evident 
principles,  or  axioms,  that  it  is  for  the  interest  of  the  community 
that  a  limit  should  be  prescribed  to  litigation  ;  and  that  the  same 
cause  of  action  ought  not  to  be  brought  twice  to  a  final  determina- 
tion. Justice  requires  that  every  cause  be  once  fairly  and  im- 
partially tried ;  but  the  public  tranquillity  demands  that,  having 
been  once  so  tried,  all  litigation  of  that  question,  and  between 
those  parties,  should  l)e  closed  for  ever.  It  is  also  a  most  obvious 
principle  of  justice,  that  no  man  ought  to  be  bound  by  proceedings 
to  which  he  was  a  stranger;  but  the  converse  of  this  rule  is 
equally  true,  that  by  proceedings  to  which  he  was  not  a  stranger, 
he  may  well  be  held  bound. 

§  523.  Under  the  term  parties,  in  this  connection,  the  law  in- 
cludes all  who  are  directly  interested  in  the  subject-matter,  and 
had  a  right  to  make  defence,  or  to  control  the  proceedings,  and  to 
appeal  from  the  judgment.  This  right  involves  also  the  right 
to  adduce  testimony,  and  to  cross-examine  the  witnesses  adduced 
on  the  other  side.  Persons  not  having  these  rights  are  regarded  as 
strangers  to  the  cause.^  But  to  give  full  effect  to  the  principle  by 
which  partie^re  held  bound  by  a  judgment,  all  persons  who  are 
represented  by  the  parties,  and  claim  under  them,  or  in  privity 

1  As,    in    an    action    by    the    officer  countrj',   commenced  an  action  of  crim. 

against  tlie  bailee  of  the  goods  attached,  con.' as  liis />roc7iem  omy,  the  judgment  was 

fur   which   he   lias   given   a  forthcoming  held  conclusive  against  the  son,  after  his 

obligation,  reciting  the  attachment.     Ly-  majority ;    the  pwrlmn  ami/  having  been 

man /'.  Lyman,  11  Mass.  317;  Spencer  v.  appointed     by     the     court.      Morgan    v. 

Williams,  2  Verm.  liO'J;  Lowry  r.  Cady,  Thome,   9   Dowl.  22b.     In  Nciv  York;  a 

4  Verm.  504;  Foster  v.  Trull,  12  Johns,  judgment  in  an  action  on  a  joint  obliga- 

456.     So  where  the  sheriff  is  sued  for  an  tion  is  conclusive  evidence  of  the  liability 

escape,  and  has  not  returned  the  precept  of  those  oidy  who  were  personallyserved 

on  wliich  the  arrest  was  made,     llinman  with  the  process.     2  l\ev.  Stat.  574,  od 

V.  Brccs,  13  Johns.  52'J.  edit.     [It  is  a  general  and  established  rule 

-  Lester  v.  Jenkins,  8  B.  &  C.  339;  of  law,  that  when  a  party's  right  maybe 

Morris  c.  Tugh,  3  lUivv.  1241 ;  Wilton  r.  collaterally  aflccted  by  a  judgment,  which 

(Jirdiestone,  5  B.   &  Aid.  847 ;  Michaels  fur  any  cause  is  erroneous  and  void,  but 

V.  Shaw,  12  Wend.   587;    Allen  v.  Tort-  which"he  cannot  bring  a  writ  of  error  to 

land  Stage  Co.  8  Grcenl.  507;  Taylor  v.  reverse,   he    m;iy,    without   reversing   it, 

Duiulass^  1  Wash.  94.  prove  it  so  erroneous  and  void  in  any  suit 

"  Duchess  of  Kingston's  case,  20  How-  in  which  its  validity  is  drawn  in  ipiestiun. 

ell's  St.  Tr.  538,  n. ;  Carter  r.  Bennett,  4  By    Metcalf,   J.,   in    Vose   v.   Morton,   -4 

Flor.  Bep.  352.     Where  a  father,  during  Cush.  27,  31.] 
the  absence  of  his  minor  son  trom  the 


560  LAW   OP   EVIDENCE.  [PART  III. 

with  .tlicm,  arc  equally  concluded  by  the  same  proceedings.  We 
have  already  seen,  that  the  term  privity/  denotes  mutual  or  succes- 
sive relationship  to  the  same  rights  of  property .^  The  ground, 
therefore,  upon  which  persons  standing  in  this  relation  to, the  liti- 
gating party  are  hound  by  the  proceedings,  to  which  he  was  a 
party,  is,  that  they  are  identified  with  him  in  interest ;  and  where- 
cver  this  identity  is  found  to  exist,  all  are  alike  concluded.  Hence 
all  privies,  whether  in  estate,  in  blood,  or  in  law,  are  estopped 
from  litigating  that  which  is  conclusive  upon  him  with  whom  they 
are  in  privity.^  And  if  one  covenants  for  the  results  or  conse- 
quences of  a  suit  between  others,  as  if  he  covenants  that  a  certain 
mortgage,  assigned  by  him,  shall  produce  a  specified  sum,  he 
thcre1)y  connects  himself  in  privity  with  the  proceedings,  and  the 
record  of  the  judgment  in  that  suit  will  be  conclusive  evidence 
against  him.^ 

§  524.  But  to  prevent  this  rule  from  working  injustice,  it  is 
held  essential  that  its  operation  be  mutual.  Both  the  litigants 
must  be  alike  concluded,  or  the  proceedings  cannot  be  set  up  as 
conclusive  upon  either.  For  if  the  adverse  party  was  not  also  a 
party  to  the  judgment  offered  in  evidence,  it  may  have  been  ob- 
tained upon  his  own  testimony  ;  in  which  case,  to  allow  him  to  derive 
a  lienefit  from  it  would  be  unjust.^  Another  qualification  of  the 
rule  is,  that  a  party  is  not  to  be  concluded  by  a  judgment  in  a 
prior  suit  or  prosecution,  where,  from  the  nature  or  course  of  the 
proceedings,  he  could  not  avail  himself  of  the  sqjpe  means  of 
defence,  or  of  redress,  which  are  open  to  him  in  the  second 
suit.^ 

§  525.  An  apparent  exception  to  this  rule,  as  to  the  identity  of 
the  parties,  is  allowed  in  the  cases  usually  termed  proceedings_.m 
rem;    which  include   not   only  judgments   of   condemnation  of 

1  Supra,  §  189.     See  also  §§  19,  20.  against  the  servant,  and  parol  evidence  is 

2  Carver  r.  Jackson,  4  Peters,  85,  86 ;  admissible  to  show  that  the  same  matter 
Case  V.  Keeve,  14  Johns.  81.  See  also  i  is  in  controversy  in  both  actions.  Emery 
Kinnerslcy  v.  Wm.  Orpe,  2  Doug.  517,  't'.  Fowler,  39  Maine,  326.]  [*So,  too,  in 
expounded  in  14  Johns.  81,  82,  by  Spen-  all  cases,  the  record  of  a  judguient  is  evi- 
cer,  J.  [A  privy  by  representation  as  an  dence  in  suits  where  the  rights  of  the 
executor,  administrator,  or  assignee,  is  parties  are  dependent  upon  those  of  the 
bound  by  a  judgment  against  his  princi-  parties  to  such  judgment,  and  such  depen- 
pai.  Cliapin  i-.  Curtis,  23  Conn.  388.  A  dence  may  be  shown  by  evidence  en  pais. 
judgment  on  the  merits  against  a  master.  Key  v.  Dent,  14  Md.  86.] 

in  an  action  of  trespass,  for  tlie  act  of  his  ^  Kapelye  v.  Prince,  4  Hill,  R.  119. 

servant,  is  a  bar  to  an  action  against  the  *  Wood    v.    Davis,    7     Cranch,    271 ; 

servant  for  the   same   act,   though  such  Davis  v.  Wood,  1  Wheat.  6. 
judgment  was  not  rendered  till  after  the  ^  1  Stark.  Evid.  214,  215. 

I  general  issue   was  pleaded  to  the  action 


CUAP,  V 


•] 


RECORDS   AND   JUDICIAL   WRITINGS. 


i(31 


property,  as  forfeited  or  as  prize,  in  the  Exchequer  or  Admiralty, 
but  also  the  decisions  of  other  courts  directly  u[)Oii  the  personal 
status,  or  relations  of  the  party,  such  as  marriage,  divorce,  bas- 
tardy, settlement,  and  the  like.  These  decisions  arc  Ijinding  and 
conclusive,  not  only  upon  the  parties  actually  litigating  in  the 
cause,  but  upon  all  others ;  partly  upon  the  ground  that,  in  most 
cases  of  this  kind,  and  especially  in  questions  U})on  property 
seized  and  proceeded  against,  every  one  who  can  possibly  be 
affected  by  the  decision  has  a  right  to  appear  and  assert  his  own 
rights,  by  becoming  an  actual  party  to  the  proceedings  ;  and  partly 
upon  the  more  general  ground  of  public  policy  and  convenience, 
it  being  essential  to  the  peace  of  society,  that  questions  of  this 
kind  should  not  be  left  doubtful,  but  that  the  domestic  and  social 
relations  of  every  member  of  the  community  should  ]je  clearly 
defined  and  conclusively  settled  and  at  rest.^ 

§  526.  A  further  exception  is  admitted  in  the  case  of  verdicts 
and  judgments  upon  subjects  of  a  imhlia  nature,  such  as  customs, 
and  the  like ;  in  most  of  all  of  which  cases,  evidence  of  reputation 


1  1  Stark.  Evid.  27,  28.  [The  decree 
of  a  court  of  competent  jurisdiction  dis- 
niissinuf  for  want  of  proof  a  lil)el  filed 
by  a  wife  a<;ainst  her  husband,  after  hav- 
injj;  left  his  house,  for  a  divorce  from  bed 
and  board  for  extreme  cruelty,  is  not  con- 
clusive evidence  of  her  having  unjustifi- 
ably left  his  house,  in  an  action  by  a  third 
person  against  him  for  necessaries  fur- 
nished the  wife.  Burlen  v.  Shannon,  3 
Gray,  387,  389.  In  *iiving  the  oi)inion  of 
the  court  in  this  case,  Shaw,  C.  J.,  said  : 

"  We  have  no  doubt  that  a  decree 
upon  a  libel  for  divorce,  directly  deter- 
mining the  status  of  the  parties,  that  is, 
whether  two  persons  are  or  are  not  hus- 
band and  wife ;  or,  if  they  have  been 
husband  and  wife,  that  such  a  decree  di- 
vorcing them,  either  a  vinculo  or  a  mensd, 
would  be  conclusive  of  the  fact  in  all 
courts  and  everywhere,  that  they  are  so 
divorced.  If  it  were  alleged  that  a  mar- 
riage was  absolutely  void,  as  being  within 
the  degrees  of  consanguinity,  a  decree  of 
this  court,  on  a  libel  by  one  of  the  par- 
ties against  the  other,  adjudging  the  mar- 
riage to  be  void,  or  valid,  would  be  con- 
clusive everywhere.  So,  imder  the  Rev. 
Stat.  76,  §  -1,  where  one  party  alleges 
and  the  otlier  denies  the  subsistence  of  a 
valid  marriage  between  them,  the  adjudi- 
cation of  the  competent  tribunal  would  be 
conclusive.     The  legal,  social  relation  and 


'condition  of  the  parties,  as  being  husband 
and  wife  or  otherwise,  divorced  or  other- 
wise, is  what  we  understand  by  the  term 
status.  To  this  extent  the  decree  in  ques- 
tion had  its  fuU  effect,  bj'  which  every 
party  is  bound.  It  did  not  establish,  but 
it  recognized  and  presupposed  the  relation 
of  husband  and  wife  as  previously  sub- 
sisting ;  and  as  the  final  judgment  was, 
that  the  grounds  on  which  a  divorce  a 
vunsci  was  claimed  were  not  established  in 
proof,  and  the  libel  was  dismissed,  which 
was  a  final  judgment,  no  change  in  the 
status  of  the  parties  was  effected,  and  they 
stood,  after  the  judgment,  in  the  relation 
in  which  they  stood  at  the  conmiencement 
of  the  suit — that  of  husband  and  wife. 
Beyond  this  legal  efiect  of  a  judgment  in 
a  case  for  divorce — that  of  determining 
the  status  of  the  parties  —  the  law  applies, 
as  in  other  judicial  proceedings  :  viz.,  that 
a  judgment  is  not  evidence  in  another 
suit,  except  in  cases  in  which  the  same 
parties  or  their  privies  iire  litigating  in 
regard  to  the  same  subject  of  contto- 
versy." 

Authenticated  copies  of  decrees  of  cer- 
tain courts  in  the  Russian  province  of 
Lithuania,  on  a  question  of  pedigree,  of 
which  they  have  jurisdiction,  are  conclu- 
sive evidence  of  the  facts  adjudicated 
aiiainst  all  the  world.  Eiinis  i'.  Smith,  14 
How.  U.  S.  400.] 


0'12  LAW   OF   EVIDENCE.  [PART   III. 

is  admissiljlc ;  and  also  in  cases  of  judgments  in  rem,  which  may 
Ijc  agaiji  mentioned  hereafter.^ 

§  527.  A  judgment,  when  used  by  way  of  inducement,  or  to 
estal>lish  a  collateral  fact,  may  be  admitted,  though  the  parties  are 
not  the  same.  Thus,  the  record  of  a  conviction  may  be  shown,  in 
order  to  prove  the  legal  infamy  of  a  witness.  So,  it  may  be 
shown,  in  order  to  let  in  the  proof  of  what  was  sworn  at  the  trial ; 
or  to  justify  proceedings  in  execution  of  the  judgment.  So,  it 
may  be  used  to  show  that  the  suit  was  determined ;  or,  in  proper 
cases,  to  prove  the  amoimt  which  a  principal  has  been  compelled 
to  pay  for  the  default  of  his  agent ;  or,  the  amount  which  a  surety 
has  been  compelled  to  pay  for  the  principal  debtor ;  and,  in 
general,  to  show  the  fact,  that  the  judgment  was  actually  rendered 
at  such  a  time,  and  for  such  an  amount.^ 

§  527a.  A  record  may  also  be  admitted  in  evidence  in  favor 
of  a  stranger,  against  one  of  the  parties,  as  containing  a  solemn 
((dmission,  or  judicial  declaration  by  such  party,  in' regard  to  a 
certain  fact.  But  in  that  case  it  is  admitted  not  as  a  judgment 
conclusively  establishing  the  fact,  but  as  the  deliberate  declaration 
or  admission  of  the  party  himself  that  the  fact  was  so.j  It  is  there- 
fore to  be  treated  according  to  the  principles  governing-  admissions, 
to  Avhich  class  of  evidence  it  properly  belongs.  Thus,  where  a 
carrier  brought  trover  against  a  person  to  whom  he  had  delivered 
the  goods  intrusted  to  him,  and  which  were  lost,  the  record  in  this 
suit  was  held  admissible  for  the  owner,  in  a  subsequent  action 
brought  by  him  against  the  carrier,  as  amounting  to  a  confession 
in  a  court  of  record,  that  he  had  the  plaintiff's  goods.^  So,  also, 
where  the  plaintiff,  in  an  action  of  trespass  quare  clausum  /regit, 
claimed  title  by  disseisin,  against  a  grantee  of  the  heirs  of  the 
disseisee,  it  was  held,  that  the  count,  in  a  writ  of  right  sued  by 
those  heirs  against  him,  might  be  given  in  evidence,  as  their  decla- 
ration and  admission  that  their  ancestor  died  disseised,  and  that 
the  present  plaintiff  was  in  possession.^  So,  where  two  had  been 
svied  as  partners,  and  had  suffered  judgment  by  default,  the  record 
was  held  competent  evidence  of  an  admission  of  the  partnership, 

1  See  infra,  §§  541,  542,  544,  555.  ^  Tiley  v.  Cowling,  1  Ld.  Raym.  744, 

•-  See  further  itifru  §§  538,  539 ;  Lock  per  Holt,   C.  J. ;  Bull.  N.  P.  243,  s.  c. ; 

r.  Winston,  10  Ala.  84'J;  King  i'.  Cliase,  Parsons  v.  Copeland,  33  Maine,  370. 

15  N.  Hainp.  K. 'J;  Green  v.  New  River  *  Robinson   v.    Swett,   3  Greenl.  316; 

Co.  4  T.  R.  58'J;    [Chamberlain  v.  Car-  stipm,  %  195;  Wells  v.  Compton,  8  Rob. 

lisle,  6  Foster,  540;  Key  v.  Dent,  14  Md.  Louis.  R.  171.    And  see  KeUenberger  i-. 

^•i-]  Suirtevant,  7  Cush.  4G5. 


CHAP.  Y.]  RECORDS   AND   JUDICIAL    WRITINGS.  563 

in  a  subsequent  action  brought  by  a  third  person  against  them  as 
partners. 1  And  on  the  same  ground,  in  a  libel  by  a  wife  for 
a  divorce,  because  of  the  extreme  cruelty  of  the  husband,  the  record 
of  his  conviction  of  an  assault  and  battery  upon  her,  founded  upon 
his  plea  of  "•  guilty,"  was  held  good  evidence  against  him,  as  a  judi- 
cial admission  of  the  fact.  But  if  the  plea  had  been  "  not  guilty," 
it  would  have  been  otherwise.^ 

§  528.  The  principle  upon  which  judgments  are  held  conclusive 
upon  the  parties  requires  that  the  rule  should  apply  only  to  that 
which  was  directly  in  issue,  and  not  to  every  thing  which  was 
incidentally  brought  into  controversy  during  the  trial.  We  have 
seen  that  the  evidence  must  correspond  with  the  allegations,  and 
be  confined  to  the  point  in  issue.  It  is ,  only  to  the  material  allc; 
gations  of  one  party  that  the  other  can  be  called  to  answer ;  it 
is  only  upon  such  that  an  issue  can  properly  be  formed ;  to  such 
alone  can  testimony  be  regularly  adduced  ;  aiid  upon  such  an 
issue  only  is  judgment  to  be  rendered.  A  record,  therefore,  is  not 
licld  conclusive  as  to  the  truth  of  any  allegations,  which  were  noi 
material  nor  traversable  ;  but  as  to  things  material^  and  traversable, 
itTs  conclusive  and  final!  The  general  rule  on  this  subject  was 
laid  down  with  admirable  clearness,  by  Lord  Chief  Justice  De 
Grey,  in  the  Duchess  of  Kingston's  case,'^  and  has  been  repeatedly 
confirmed  and  followed,  without  qualification.  "  From  the  variety 
of  cases,"  said  he,  "  relative  to  judgments  being  given  in  evidence 
in  civil  suits,  these  two  deductions  seem  to  follow  as  generally 
true :  first,  that  the  judgment  of  a  court  of  concurrent  jurisdiction, 
directly  upon  the  point,  is,  as  a  plea,  a  bar ;  or,  as  evidence, 
conclusive  between  the  same  parties,  upon  the  same  matter, 
directly  in  question  in  another  court ;  secondly,  that  the  judgment 
of  a  court  of  exclusive  jurisdiction,  directly  upon  the  point,  is,  in 
like  manner,  conclusive  upon  the  same  matter,  between  the  same 
parties,  coming  incidentally  in  question  in  aliother  court,  for  a 
different  purpose."*     But  neither  the  judgment  of  a  concurrent  nor 

1  Crait?  V.  Carleton,  8  Shepl.  492.  tribunal  liaving  competent  authority  and 

2  Bradley  v.  Bradley,  2  Fairf.  3G7  ;  full  jurisdiction  is  presumptively  upon  the 
Woodruti"  v.  Woodruff,  Id.  475.  merits,  and  is,  prima  facie,  a  bar  to  any 

3  20  Howell's  St.  Tr.  538;  expressly  after  suit.  Stearns  r.. Stearns,  32  Vt.  678. 
adopted  and  conlirmed  in  Harvey  v.  Rich-  And  the  award  of  an  arbitrator  is,  prima 
ards,  2  Gall.  22U,  jier  Story,  J.  ;  and  in  facie,  conclusive  upon  all  matters  of  differ- 
Hibs'ham  v.  DuUcban,  4  Watts,  183,  per  ence  submitted.  Harrison  v.  Creswick, 
Gibson,  C.  J.    And  see  Kim?  v.  Chase,  15  13  Com.  B.  399,  416.] 

N.  Hamp.  R.  9.     [*The  judgment  of  a         ^  Thus,  a  judgment  at  law,  agamst  the 


564  LAW    OF    EVIDENCE.  [PART   III. 

exclusive  jurisdiction  is  evidence  of  any  matter,  which  came  col- 
laterally in  question,  though  within  their  jurisdiction ;  nor  of  any 
matter  incidentally  cognizable  ;  nor  of  any  matter  to  be  inferred  by 
argument  from  the  judgment."  ^ 

§  529.  It  is  only  where  the  point  in  issue  has  been  determined, 
that  the  judgment  is  a  bar.  If  the  suit  is  discontinued,  or  the 
plaintiff  becomes  nonsuit,  or  for  any  other  cause  there  has  been 
no  judgment  of  the  court  upon  the  matter  in  issue,  the  proceedings 
arc  not  conclusive.^ 

^  530.  So,  also,  in  order  to  constitute  the  former  judgment  a 
complete  bar,  it  must  appear  to  have  been  a  dechion  upon  the 
merits ;  and  this  will  be  sufficient,  though  the  declaration  were 
':  essentially  defective,  so  that  it  would  have  been  adjudged  bad  on 
demurrer.'^  But  if  the  trial  went  off  on  a  technical  defect,*  or 
because  the  debt  was  not  yet  due,^  or  because  the  court  had  not 
jurisdiction,^  or  because  of  a  temporary  disability  of  the  plaintiff  to 
sue,'  or  the  like,  the  judgment  will  be  no  bar  to  a  future  action. 

§  531.  It  is  well  settled,  that  a  former  recovery  may  be  shown 
in  CAddence,  under  the  general  issue,  as  well'  as  pleaded  in  bar ; 
and  that  when  pleaded,  it  is  conclusive  upon  the  parties.^  But 
whether  it  is  conclusive  zvJien  given  in  evidence  is  a  point_wlncli  has 
been  much  doubted.     It  is  agreed,  that  when  there  has  been  no 


validity  of  a  bill,  as  having  been  given  for 
a  gaml)ling  debt,  is  conclusive  of  that  fact 
in  equity  also.  Pearce  v.  Gray,  2  Y.  &  C. 
322.  Plans,  and  documents  referred  to  in 
the  pleadings  are  conclusive  upon  the 
parties,  if  they  are  adopted  by  the  issues 


been  inndvcrtcnthi  inseiied  a  direction  as  to 
the  distribution  of  a  certain  fund,  it  was 
held  that  the  parties  interested  were  not 
affected  therebv.  Holland  v.  Cruft,  3 
Gray,  162,  187"] 

8  Hughes  V.  Blake,  1  Mason,  515,  5PJ, 


and  make  part  of  the  judgment;  but  not  per  Story,  J.     [A  judgment  of  nonsuit  by 

otherwise.     Hobbs  v.  Parker,  1  Redingt.  the  Supreme  Court  of  Massachusetts,  en- 

143.  tered   by   consent  of  the  parties,  on   an 

1  See  2  Kent,  Comm.  119-121 ;  Story  agreed  statement  of  facts,  luus  been  held 

on   Confl.  of  Laws,  §  591-593,  603-610.  not  be  a  bar  to  a  suit  between  the  same 

Tliis  subject,  particularly  with  regard  to  parties   ui)on  tlie   same  cause   of  action, 

the  identity  of  the  issue  or  subject-matter  though  tlie  st;Ue  court,  in  pronouncing  its 

in  controversy,  in  actions  concerning  tlic  judgment,  may  have  expressed  an  opinion 

realty,  is  ably  reviewed  and  illustrated  by  upon   the   merits   of  the   plaintifTs  case. 

Putnam,  J.,  in  Arnold  v.  iVrnold,  17  Pick.  Homer  v.  Brown,  16  How.  U.  S.  354.] 
7-14.     [Vose  V.  Morton,  4  Gush.  27,  31.]  *  Ibid. ;  Lane  v.  Harrison,  Munf  573; 

-  Kno.x   I'.    Waldoborough,   5    Greenl.  McDonald  r.  Kainor,  8  Johns.  442 ;  Lep- 

185;  Hull  V.  Blake,  13  Mass.  155;  Swei-  ping  v.  Kedgewin,  1  Mod.  207. 
gart  c.  Berk,  8  S.  &  R.  305:  Bridge  v.  ^  X.  Eng.  Bank  v.  Lewis,  8  Pick.  113. 

Sumner,  1  Pick.  371 ;    3  Bl.  Conmi.  296,  ^  Estill  v.  Taul,  2  Yerg.  467,  470. 

377.     So,   if  the  judgment  has   been  re-         ''  Dixon  v.  Sinclair,  4  Verm.  354. 
versed.     Wood  r.  Jackson,   8   Wend.   9.  ^  Trevivan  i'.  Lawrence,   1  Salk.  276; 

If  tliere  has  bet'u  no  judgment,  it  has  been  3  Salk.  151,  s.  c. ;  Outram  w.  Morewood. 

ruled  that  the  iiieadiiigs  are  not  admissible  3  East.  346  ;  Kitchen  v.  Campl)ell,  3  Wils. 

as  evidence  of  the  facts  recited  in  them.  304;    2   W.   Bl.   827,  s.  c. ;    [Warren  v. 

Holt  V.  Miers,  9  C.  &  P.  191.    [And  where,  Comings,  6  Cush.  103,  104 ;  Chamberlain 

in  a  decree  in  a  suit  in  equity,  there  has  v.  Carlisle,  6  Foster,  540.] 


CHAP,  v.] 


RECORDS   AND   JUDICIAL   WRITINGS. 


565 


opportunity  to  plead  a  matter  of  estoppel  in  bar,  and  it  is  offered 
in  evidence,  it  is  equally  conclusive,  as  if  it  had  been  pleaded. ^ 
And  it  is  further  laid  down,  that  Avhcn  the  matter,  to  wliich  the 
esto}»pel  applies,  is  alleged  by  one  party,  and  the  other,  instead 
of  pleading  the  estoppel,  chooses  to  take  issue  on  the  fact,  he 
waives  the  benefit  of  the  estoppel,  and  leaves  the  jury  at  liberty 
to  find  according  to  the  fact.^     This  proposition  is  admitted,  in  its 
application  to  estoppels  arising  from  an  act  of  the  party  himself, 
in  making  a  deed,  or  the  like ;   but  it  has  been  denied  in  its 
application  to  judgments  recovered ;  for,  it  is  said,  the  estoppel, 
in  the  former  case,  is  allowed  for  the  benefit  of  the  other  party, 
which  he  may  waive ;  but  the  whole  community  have  an  interest 
in  holding  the  parties  conclusively  bound  by  the  result  of  their 
own  litigation.     And  it  has  been  well  remarked,  that  it  appears 
inconsistent,  that  the  authority  of  a  res  judicata  should  govern  the 
court,  when  the  matter  is  referred  to  them  by  pleading,  but  that 
a  jwy  should  be  at  lilierty  altogether  to  disregard  it,  when  the 
matter  is  referred  to  them  in  evidence ;   and,  that  the  operation 
of  so  important  a  principle  should  be  left  to  depend  upon  the 
technical  forms  of  pleading  in  particular  actions.^     And  notwith- 
standing there  are  many  respectable  opposing  decisions,  the  weight 
of  authority,  at  least  in  the  United  States,  is  believed  to  be  in 
ftivor  of  the  position,  that  where  a  former  recovery  is  given  in  evi- 
dence, it  is  equally  conclusive,  in  its  effect,  as  if  it  were  specially 
pleaded  by  the  way  of  estoppel.'^ 


1  Howard  v.  JMitchell,  14  Jlass.  241 ; 
Adams  v.  Barnes,  17  Mass.  3G5.  So,  in 
equity.  Dows  v.  McMicliael,  6  Paitre, 
lyit.  ' 

2  Ihid. 

3  Phil.  &  Am.  on  Evid.  512. 

*  This  point  was  briefly',  but  very 
forcibly,  arsjued  bv  Kennedy,  J.,  in 
:Marsh\'.  Pier,  4  Rawie,  288,  289,  in  the 
followinji  terms :  The  propriety  of  those 
decisions,  which  have  admittetl  a  judg- 
ment in  a  former  suit  to  be  given  in 
evidence  to  the  jury,  on  the  trial  of  a  sec- 
ond suit  for  the  same  cause  between  the 
same  parties,  or  those  claiming  under 
them,  but  at  the  same  time  have  held  that 
the  jury  were  not  absolutely  bound  b}^ 
such  judgment,  because  it  was  not  i)lea(l- 
ed,  may  well  be  questioned.  The  maxim, 
mino  debet  bis  vt.vuri  si  constet  citriie  (jiiod  sit 
pro  una  et  eadem  causa,  being  considered, 
as  doubtless  it  was,  established  for  the 
protection  and  benefit  of  the  party,  he  may 
vot.  I. 


tlierefore  waive  it :  and  unquestionably, 
so  tar  as  he  is  individually  concerned, 
there  can  be  no  rational  objection  to  his 
doing  so.  But  then  it  ought  to  be  recol- 
lected that  the  conunuuity  has  also  an 
equal  interest  and  concern  in  the  matter, 
on  account  of  its  peace  and  quiet,  which 
ought  not  to  be  disturbed  at  the  will  and 
pleasure  of  every  individual,  in  order  to 
gratity  vindictive  and  litigious  feelings. 
Hence  it  would  seem  to  follow,  that,  wher- 
ever on  the  trial  of  a  cause  from  the 
state  of  the  pleadings  in  it,  the  record  of 
a  judgment  rendered  by  a  competent  tri- 
bunal upon  the  merits  in  a  former  action 
for  the  same  cause,  between  the  same  par- 
tics,  or  those  claiming  under  them,  is  projv 
erly  given  in  evidence  to  the  jury,  that  it 
ought  to  be  considered  conclusively  bind- 
ing on  both  court  and  jury,  and  "to  pre- 
clude all  further  inquiry  in  the  cause  ; 
otherwise  the  rule  or  maxim,  espedit  rei- 
publicce  ut  sit  jinis  litium,  which  is  as  old  as 
48 


56(3 


LAW   OF   EVIDENCE. 


[part   III. 


"I"     [*  §  531a.  This  question  is  carefully  examined  by  us,  in  a  case 
liii  Vermont,^  and  the  earlier  cases  reviewed.     The  form  of  pleading 
I  an  estoppel  is  there  considered,  and  that  adopted  in  Shelly  v. 
Wn'i/ht'^  approved.     But  it  is  there  said,  that  when  a  former  adju- 
dication is  relied  upon,  as  having  determined  the  entire  conti'oversy 
now  in  hand,  it  need  never  be  pleaded  as  an  estoppel,  but  is  an 
equital)le  defence,  and  in  many  actions  may  Ije  given  in  evidence 
!  under  the  general  issue  ;  and  when  required  to  be  pleaded  specially. 


the  law  itself,  anil  a  part  of  it,  will  be  ex- 
jiloded  and  entirely  disrcijarded.  But  if 
it  be  part  of  our  law,  as  seenis  to  be  ad- 
mitted by  all  that  it  is,  it  appears  to  me, 
tliat  the  court  and  jur}'  are  clearly  bound 
by  it,  and  not  at  liberty  to  find  against 
such  former  judgment.  A  contrary  doc- 
trine, as  it  seems  to  me,  subjects  the  pub- 
lic peace  and  quiet  to  tlie  will  or  neglect 
of  individuals,  and  prefers  the  gratitica- 
tion  of  a  litigious  disposition  on  the  part 
of  suitors,  to  tlie  preservation  of  the  public 
tranquillity  and  happiness.  The  result, 
among  other  tilings,  would  be,  that  the 
tribunals  of  the  state  would  be  bound  to 
give  their  time  and  attention  to  the  trial 
of  new  actions,  for  the  same  causes,  tried 
once  or  oftener,  in  former  actions  between 
the  same  parties  or  privies,  without  any 
limitation, 'other  than  the  will  of  the  par- 
ties litigant,  to  tiie  great  delay  and  injury, 
if  not  exclusion  occasionally  of  other 
causes,  which  never  have  passed  in  rem 
jiidicatam.  The  effect  of  a  judgment  of  a 
court,  having  jurisdiction  over  the  subject- 
matter  of  controversy  between  the  par- 
ties, even  as  an  estoj)pel,  is  very  different 
from  an  estoppel  arising  from  the  act  o*' 
the  party  himself,  in  making  a  deed  of  in- 
denture, &c.,  wliich  may,  or  may  not  be 
enforced  at  the  election  of  the  other  party  ; 
because,  whatever  the  parties  have  done 
by  compact,  they  may  undo  by  the  same 
means.  But  a  judgment  of  a  proper 
court,  being  the  sentence  or  conclusion  of 
tiie  law,  upon  the  facts  contained  within 
the  record,  puts  an  end  to  all  further  liti- 
gation on  account  of  the  same  matter, 
and  becomes  the  law  of  the  case,  which 
caimot  be  changed  or  altered,  even  by 
the  consent  of  tiie  parties,  and  is  not 
only  binding  upon  them,  but  upon  the 
courts  and  juries,  ever  afterwards,  as 
long  as  it  shall  remain  in  force  and  un- 
reversed." A  similar  view,  with  the  like 
distinction,  was  taken  by  Huston,  J.,  in 
Kilhctler  v.  Herr,  17  S.  &  K.  3:^5,  326. 
See  also  to  the  point,  that  the  evidence 
is    conclusive,    iShafer     v.    Stonebraker, 


4  G.  &  J.  345;  Cist  v.  Zigler,  16  S.  &  R. 
282;  Betts  v.  Starr,  5  Conn.  550,  553; 
Preston  v.  Harvey,  2  H.  &  JNIun.  55;  Es- 
till V.  Taul,  2  Yerg.  467,  471 ;  King  v. 
Chase,  15  N.  llamp.  II.  9.  In  S^ew  York, 
as  remarked  by  Savage,  C.  J.,  in  Wood 
V.  Jackson,  8  Wend.  24,  25,  the  decisions 
have  not  been  uniform,  nor  is  it  perfectly 
clear,  where  the  weight  of  authority  or  of 
argument  lies.  But  in  the  later  case  of 
Lawrence  v.  Hunt,  10  Wend.  83,  84,  the 
learned  judge,  who  delivered  the  opinion 
of  the  court,  seemed  inclined  in  favor  of 
the  conclusiveness  of  the  evidence.  [This 
case  was  confirmed  in  Thompson  v.  Rob- 
erts, 24  How.  2o3.|  See,  to  the  same 
point,  Hancock  v.  Welch,  1  Stark.  K. 
347  ;  Whately  v.  Menheim,  2  Esp.  G08 ; 
Strutt  V.  Bovingdon,  5  Esp.  56-50 ;  Kex 
r.  St.  Pancras,  Peake's  Cas.  220;  Duchess 
of  Ivingston's  case,  20  Howell's  St.  Tr. 
538 ;  Bird  i-.  Randall,  3  Burr.  1353.  The 
contrary  decision  of  Vooght  v.  Winch,  2 
B.  &  Aid.  662,  was  cited,  but  without  be- 
ing approved,  by  Best,  C.  J.,  in  Stafford 
V.  Clark,  1  C.  &  P.  405,  and  was  again 
discussed  in  the  same  case,  2  Bing.  377  ; 
but  each  of  the  learned  judges  expressly 
declined  giving  any  opinion  on  the  point. 
This  case,  however,  is  reconciled  witli 
other  P]nglish  cases,  by  Mr.  Smitli,  on  the 
ground,  that  it  means  no  more  than  this, 
that  where  the  party  might  plead  the  rec- 
ord by  estoppel,  but  does  not,  he  waives 
its  conclusive  character.  See  2  Smith's 
Leading  Cases,  434,  444,  445.  The  learned 
author,  in  the  note  here  referred  to,  has 
reviewed  the  doctrine  of  estoi)pels  in  a 
masterly  manner.  Tlie  judgment  of  a 
court-martial,  when  offered  in  evidence  in 
support  of  a  justification  of  imprisonment, 
by  reason  of  military  disobedience  and 
misconduct,  is  not  regarded  as  conclusive  ; 
for  the  special  reasons  stated  by  Lord 
Mansfield  in  Wall  v.  McNamara,  1  T.  R. 
536.  See  ace.  Hannaford  v.  Hunn,  2  C. 
&  P.  148. 

1  [  *  Gray  v.  Pingry,  17  Vt.  R.  419. 

2  Willes,  9. 


CHAP.  V,]  RECORDS   AND   JUDICIAL   WRITINGS.  567 

-      ft 

I  is  not  required  to  he  pleaded  with  greater  strictness  tlian  any 
(  other  plea  in  bar.  But  when  the  former  trial  is  relied  upon  as 
settling  some  collateral  matter  of  fact,  involved  in  the  present 
controversy,  it  must,  to  be  conclusive,  be  pleaded  strictly  as  an 
estop}iel,  and  the  record  vouched  in  support  of  the  plea  must  con- 
tain, upon  its  face,  evidence  that  the  particular  fact  was  in  issue, 
and  was  found  by  the  triers.  And  if  the  record  do  not  show 
this,  and  it  becomes  necessary  to  resort  to  oral  evidence  to  show 
it,  the  matter  cannot  be  pleaded  as  an  estoppel,  but  it  becomes 
a  question  for  the  jury;  —  but,  nevertheless,  if  it  be  proved  to  the 
satisfaction  of  the  jury,  that  the  fact  was  determined  in  the  former 
controversy  between  the  same  parties,  it  is  equally  conclusive, 
both  upon  the  parties  and  the  jury,  as  if  it  appeared  of  record. 
AYe  are  not  aware  that  the  more  recent  decisions  have  in  any 
respect  modified  the-  foregoing  propositions.]  ^ 

§  532.  When  a  former  judgment  is  shown  by  way  of  bar,, 
whether  by  pleading,  or  in  evidence,  it  is  competent  for  the  plain- 
tiff to  reply,  that  it  did  not  relate  to  the  same  property  or  transaction 
in  controversy  in  the  action,  to  which  it  is  set  up  in  bar ;  and  the 
question  of  identity,  thus  raised,  is  to  be  determined  by  the  jury, 
upon  the  evidence  adduced.^     And  though  the  declaration  in  the 

1  Perkins  v.  AValker,  19  Vt.  R.  144,  an  action  against  one  of  two  joint  trespas- 
where  tiie  subject  is  very  ably  discussed  sers,  which  would  be  conclusive  evidence 
by  Bennett,  J.]  in  a  subsequent  action  against  him  by  the 

2  So,  if  a  deed  is  admitted  in  pleading,  same  plaintitf,  will  not  be  conclusive  in  an 
proof  of  the  identity  may  still  be  required,  action   hy  such  plaintitf  against  the  co- 
Johnston   i\  Cottiugham,  1  Armst.  Mac-  trespasser.      Sprague  r.  Oakes,  19  Pick, 
artn.  &  Ogle,  R.  11.     And  see  Garrott  v.  455-458.    Judgment  and  satisfaction  in  an 
Johnson,  11  G.  &  J.  173.     [A  verdict  and  action  on  a  bond  given  to  dissolve  an  at- 
judgmcnt  for  B  in  an  action  at  law  brought  tachmcnt,   constitute  no    defence    to    an 
against  him  by  A,  for  obstructing  the  How  action  on  a  bond  given  to  obtain  a  review 
of  water  to  A's  mill,  in  which  action  B  put  of  the  action  in  whicli  the  attachment  was 
in  the  plea  of  "not  guilty,"  and  a  speci-  made,  for  a  breach  of  a  condition  to  enter 
fication  of  defence  denying  both  A's  right  such  review  at  the  next  term  of  the  court, 
and  any  injury  thereto,  are  no  bar  to  a  Lelian  ;•.  Good,  8  Cush.  302-309.  X^ 
suit  in'equitj-  by  A  against  B  to  restrain         To  an  action  for  goods  sold,  the  defen- 
such  obstruction,  unless  it  appear  either  by  dant  answered  that  he  had,  in  part  pay- 
the  record,  or  by  extrinsic  evidence  that  ment  of  the  price,  given  a  special  promise 
B  prevailed  in  the  action  at  law  because  to  pay  certain  debts  of  the  plaintitf,  and 
A  had  failed  to  satisfy  tlie  jury  that  B  had  had  performed  that  promise,  and  that  he 
violated  A's  rights.     ^McDowell  v.  Lang-  had  otherwise  paid  tiie  remainder  of  the 
don,  3  Gray,  513.     To  prove  that  the  ■24th  price.     The  dctendant  recovering  in  this, 
da}^  of  a  certain  month  was  a  reasonable  action,  the  plaintifl"  brought  an  action  on;    ,•■ 
time  in  which  to  perform  a  certain  con-  the  special  promise,  and  it  was  held  that;  •'"' 
tract,  the  record  of  a  former  judgment  be-  the  judgment  for  the  defendant  in  tlie  for- 
tween  the  same  parties  establishing  that  mer  action  was  no   bar  to  the  s\ibsequent' 
the  22(1  day  of  the  same  month  was  with-  action  on  tiie  special  promise.    Ilarding^^^ 
in  a  reasonable  time,  is  not  competent  evi-  Hale,  2  Gray,  399,  400.     A  having  con- 
dence.     Sage  v.  McAlpin,  11  Cush.  165.  tracted  to  convey  land  to  B,  conveyed  it 

A  verdict  in  tavor  of  the  defendant  in.  to  C.    B  brought  a  bill  in  equity  against 


5G8 


LAW   OF   EVIDENCE. 


[part   III. 


Ibrnun-  suit  may  be  broad  enough  to  inclutlc  the  subject-matter 
of  the  second  action,  yet  if,  upon  the  whole  record,  it  remains 
doubtful  whether  the  same  subject-matter  were  actually  passed 
upon,  it  seems  that  parol  evidence  may  be  received  to  show  the 
truth.i  go  J  also,  if  the  pleadings  present  several  distinct  proposi- 
tions and  the  evidence  may  be  referred  to  either  or  to  all  with 
the  same  propriety,  the  judgment  is  not  conclusive,  but  only 
prima  facie  evidence  upon  any  one  of  the  propositions,  and  evi- 
dence aliunde  is  admissible  to  rebut  it.^  Thus  where  the  plaintiff 
in  a  former  action  declared  upon  a  promissory  note,  and  for  goods 
sold,  but  upon  executing  the  writ  of  inquiry,  after  judgment  by 
default,  he  was  not  prepared  with  evidence  on  the  count  for  goods 
sold,  and  therefore  took  his  damages  only  for  the  amount  of  the 
note ;  he  was  admitted,  in  a  second  action  for  the  goods  sold,  to 
prove  the  fact  by  parol,  and  it  was  held  no  bar  to  the  second 
.action .3     And  upon  the  same  principle,  if  one  wrongfully  take 


A  and  C  for  a  specific  performance  of  the 
contract,  Init  judfjment  was  rendered 
thereon  for  the  respondents,  A  and  C.  B 
subsequently  brought  an  action  at  law 
against  A  to  recover  damages  for  the 
breacli  of  the  contract,  and  it  was  held 
that  the  judgment  in  the  equity  suit  was 
no  bar  to  the  action  at  law.  Buttrick  v. 
Ilolden,  8  Cush.  233-236.] 

1  It  is  obvious  that,  to  prove  what  was 
the  point  in  issue  in  a  previous  action  at 
common  law,  it  is  necessary  to  produce 
the  mtire  record.  Toot  v.  Glover,  4  Blackf. 
313.  And  see  Morris  v.  Keyes,  1  Hill, 
5-10 ;  Glasscock  v.  Hays,  4  Dana,  69  ; 
[Drake  v.  Merrill,  2  Jones,  Law,  308.  A 
petitioner  for  partition,  claiming  title  under 
a  judgment,  may  show  by  parol  evidence 
that  his  name  was  incorrectly  stated  in 
the  judgment,  througli  mistake  ;  and  it  is 
not  necessary  for  this  purpose  that  the 
mistake  should  be  previously  corrected 
(m  the  record.  And  where  there  is  a  dif- 
ference between  the  description  of  the 
land  of  which  partition  is  demanded  in  a 
petition  for  partition,  and  the  description 
of  land  in  a  judgment  under  which  the 
j)etiiioner  claims  title,  he  niay  show  by 
parol,  that  the  land  described  in  both  is 
tlie  same,  ami  if  he  estabUshes  this  fact, 
then  the  former  judgment  is  conclusive 
evidence  of  his  title  thercto.  Wood  v. 
Le  Baron,  8  Cush.  471,  473;  Root  (;.  Fel- 
lowes,  6  Cush.  2',) ;  Washington  Steam 
I'acket  Co.  v.  Sickles,  24  How.  333.] 

-  Henderson  v.  Kenner,  1  Xiichardson, 
11.  574. 


3  Seddon  v.  Tutop,  6  T.  R.  GOB;  Had- 
ley  V.  Green,  2  Tyrwh.  390.  See  ace. 
Bridge  v.  Gray,  14  Pick.  25;  Webster  v. 
Lee,  5  Mass.  334 ;  Ravee  v.  Farmer,  4  T. 
R.  146  ;  Thorpe  v.  Cooper,  5  Bing.  116  ; 
Phillips  V.  Berick,  16  Johns.  136.  But  if 
the  jury  have  passed  upon  the  claim,  it  is 
a  bar  though  they  may  have  disallowed  it 
for  want  of  sufficient  evidence.  Staiibrd 
11.  Clark,  2  Bing.  377,  382,  per  Best,  C.J. ; 
Phillips  V.  Berick,  supra.  So,  if  the  fact 
constituting  the  basis  of  the  claim  was 
proved,  among  other  things,  before  an 
arbitrator,  but  he  awarded  no  damages  for 
it,  none  having  been  at  that  time  expressly 
claimed.  Dunn  v.  JNIurray,  9  B.  &  C.  780. 
I  So,  if  lie  sues  for  part  only  of  an  entire 
land  indivisi))le  claim ;  as,  if  one  labors  for 
lanother  a  year,  on  the  same  hiring,  and 
Isues  for  a  month's  wages,  it  is  a  bar  to 
the  whole.  Miller  v.  Covert,  1  Wend. 
487.  But  it  seems  that,  generally,  a  run- 
ning account  for  goods  sold  and  delivered 
does  not  constitute  an  entire  demand. 
Badger  v.  Titcomb,  15  Pick.  415.  Contra, 
Guernsey  v.  Carver,  8  Wend.  492.  So, 
if,  having  a  claiTn  for  a  greater  amount 
consisting  of  several  distinct  particulars, 
he  sues  in  an  inferior  court,  and  takes 
judgment  for  a  less  amount.  Bagot  v. 
Williams,  3  B.  &  C.  235.  So,  if  he  ob- 
tains an  interlocutory  judgment  for  his 
whole  claim,  but,  to  avoid  delay,  takes  a 
rule  to  compute  on  one  item  only,  and  en- 
ters a  nolla  prosequi  as  to  the  other.  Bow- 
den  V.  Plorne,  7  Bing.  716. 


CHAP,  v.] 


RECORDS   AND    JUDICIAL   WRITINGS. 


569 


another's  horse  and  sell  hun,  applying  the  money  to  his  own  use, 
a  recovery  in  trespass,  in  an  action  by  the  owner  for  the  taking, 
woukl  be  a  bar  to  a  subsequent  action  of  assumpsit  for  the  money 
received,  or  for  the  price,  the  cause  of  action  being  proved  to  be 
the  same.^     But  where,  from  the  nature  of  the  two  actions,  the 


1  17  Pick.  13,  per  Putnam,  J. ;  Young 
V.  Bliiek,  7  Crancli,  5G5;  Liverniore  v. 
Herschell,  3  Pick.  33 ;  [Norton  v.  Do- 
herty,  3  Gray,  372.]  Whether  parol  evi- 
dence would  he  admissible,  in  such  case, 
to  prove  that  the  damages  awarded  in 
trespass  were  given  merely  for  the  tortious 
taking,  without  including  the  value  of  the 
goods,  to  which  no  evidence  had  been  ot- 
tered; qua  re,  and  see  Loomis  v.  Green, 
7  Greenl.  31^0.  [The  assignees  of  an  in- 
solvent debtor  brought  a  bill  in  equity  to 
set  aside  conveyances  of  property  made 
by  the  debtor  to  the  respondents,  as 
made  and  taken  either  without  considera- 
tion and  in  fraud  of  creditors,  or  by  way 
of  unlawful  preference,  contrary  to  the 
insolvent  laws.  The  bill  charged  the  res- 
pondents in  the  common  form  with  com- 
bining and  confederating  with  divers 
other  persons  to  the  complainants  un- 
Icnown,  and  prayed  for  rehef  against  the 
respondents  jointly  and  severally ;  and 
the  com't  after  a  hearing  upon  the  merits 
decreed  that  the  demands  set  up  by  the 
respondents,  in  their  several  answers  were 
justly  due  them  from  the  insolvent,  and 
that  the  conveyances  of  property  in  pay- 
ment thereof,  were  not  made  in  violation 
of  the  insolvent  laws,  and  dismissed  the 
bill.  The  assignees  subsequently  brought 
an  action  of  trover  against  one  of  the  re- 
spondents in  the  equity  suit,  for  the  same 
property,  and  it  was  held  that  the  decree 
in  that  suit  was  a  bar  to  the  action  of 
trover.  Bigelow  v.  Winsor,  1  Gray,  299, 
303  ;  Shaw^  C.  J.,  in  delivering  the  opin- 
ion of  the  court  in  this  case,  said  :  "  One 
valid  judgment  by  a  court  of  competent 
jurisdiction,  between  the  same  parties, 
upon  considerations  as  well  of  justice  as 
of  pubUc  policy,  is  held  to  be  conclusive, 
except  where  a  review,  an  appeal,  or  re- 
heai-ing  in  some  form,  is  allowed  and  reg- 
ulated by  law.  No  man  is  to  be  twice 
vexed  with  the  same  controversy.  In- 
terest relpubliae  ut  Jinis  sit  litium. 

"To  ascertain  whether  a  past  judg- 
ment is  a  bar  to  another  suit,  we  are  to 
consider,  first,  whether  the  subject-matter 
of  legal  controversy,  which  is  proposed  to 
be  brought  before  any  court  tbr  adjudica- 
tion, has  been  drawn  in  question,  and 
^Yithin  the  issue  of  a  former  judicial  pro- 
ceeding, winch  has  termmated  in  a  regu- 


lar judgment  on  the  merits,  so  that  the 
whole  question  may  have  been  determined 
by  that  adjudication;  secondly,  whether 
the  former  Utigation  was  between  the 
same  parties,  in  the  same  right  of  ca- 
pacity litigating  in  the  subsequent  suit, 
or  their  privies  respectively,  claiming 
through  or  under  them,  and  bound  and 
estopped  by  that  which  would  bind  and 
esto))  those  parties  ;  and,  thirdly,  whether 
the  former  adjudication  was  had  before  a 
court  of  competent  jurisdiction  to  hear 
and  decide  on  the  whole  matter  of  contro- 
versy, fembraced  in  the  subsequent  suit. 

"  It  is  no  objection  that  the  former  suit 
embraced  more  subjects'  of  controversy, 
or  more  matter  than  the  present ;  if  the 
entire  subject  of  the  present  controversy 
was  embraced  in  it,  it  is  sufficient,  it  is 
res  iudicatci. 

"  Nor  is  it  necessary  that  the  parties 
should  be  in  all  respects  the  same.  If  by 
law  a  judgment  could  have  been  given  in 
that  suit  tor  this  plaintitf  against  this  de- 
fendant, for  the  present  cause  of  action,  it 
has  passed  into  judgment.  Suppose  tres- 
pass for  assault  and  battery  against  five, 
and  verdict  and  judgment  for  all  the  de- 
fendants ;  then  a  new  suit  for  the  same  tres- 
pass, by  the  same  plaintitf,  against  one  of 
the  defendants,  the  former  judgment  is  a 
good  bar.  In  actions  of  tort,  the  cause  of 
action  is  several,  as  well  as  joint ;  and  if, 
upon  the  evidence,  one  defendant  was 
chargeable  with  the  trespass,  a  verdict  and 
judgment  might  have  been  rendered 
against  him  severally  in  the  first  suit,  al- 
though the  other  defendants  had  a  verdict. 

"  Nor  is  it  essential,  that  the  two  tri- 
bunals should  have  the  same  jurisdiction 
in  other  respects,  provided  the  court  was 
of  competent  jurisdiction  to  adjudicate 
upon  the  entire  matter  in  controversy,  in 
the  subsequent  suit.  Whether  it  be  a 
court  of  law  or  equity,  of  admiralty  or  of 
probate,  if  in  the  matter  in  controversy 
between  the  parties,  with  the  same  object 
in  view,  that  of  remedy  between  them, 
the  court  had  jurisdiction  to  decide,  it  is 
a  legal  adjudication  binding  on  these 
parties." 

To  render  a  former  judgment  between 
the  same  parties  admissible  in  evidence  in 
another  action  pending  between  them,  it 
nuist  appear  that  the  fact  sought  to  be 


48* 


570 


LAW    OF   EVIDENCE. 


[part   III. 


cause  of  action  cannot  be  the  same  in  both,  no  averment  will  be 
received  to  the  contrary.     Therefore,  in  a  writ  of  right,  a  plea  in 


/ 


proved  by  the  record,  was  actually  passed 
upon  by  the  jury  in  finding  their  verdict 
in  the  former  suit.  It  is  not  necessary 
that  it  siiould  have  been  directly  and  spe- 
cifically put  in  issue  by  the  pleadings ; 
but  it  is  sutlicicnt  if  it  is  sliown  that  the 
question  whicii  was  tried  in  the  former 
action  between  the  same  parties  is  again 
to  be  tried  and  settled,  in  the  suit  in 
which  the  former  judgment  is  offered  in 
evidence.  And  parol  evidence  is  admissi- 
ble to  show  that  the  same  lact  was  sub- 
mitted to,  and  passed  upon  by,  the  jury  in 
the  former  action ;  because,  in  many 
cases,  the  record  is  so  general  in  its  char- 
acter, that  it  could  not  be  known,  without 
the  aid  of  such  proof,  what  the  precise 
matter  of  controversy  was  at  the  trial  of 
the  former  action.  Thus,  where  the  fact 
sought  to  bo  established  by  the  plaintifi^s 


brousht  an  action  against  B  on  one  of  the 


n 


ship  between  ihe  defendants,  under  a 
certain  name,  a  former  j\idgment  recov- 
ered by  the  same  plaintiffs  against  the 
same  defendants,  as  copartners,  under 
such  name,  on  a  note  given  at  the  same 
I  time  with  the  one  in  suit,  is  admissible, 
\  although  not  conclusive  evidence,  of  that 
^act.  Dutton  v.  Woodman,  9  Cush.  255, 
201.  Eastman  v.  Cooper,  15  Tick.  27t3, 
279,  285.  But  in  an  action  of  rcjilcvin  for 
a  piano,  a  former  judgment  between  the 
same  parties,  in  an  action  of  trespass  r/ucere 
clausum,  in  which  the  taking-away  of  the 
same  piano  was  alleged  by  way  of  aggra- 
vation, is  not  conclusive  as  to  the  owner- 
ship of  the  piano ;  as  the  question  of  the 
title  to  the  piano  was  only  indirectly  in- 
volved. Gilbert  v.  Thompson,  9  Cush. 
348,  350 ;  Totter  v.  Baker,  19  N.  H.  166. 
Lamprey  v.  Nudd,  9  Foster,  299.  A 
judgment  for  the  demandant  in  a  real 
action  with  possession  taken  under  it,  will 
preclude  the  tenant  in  that  action  from 
afterwards  asserting  against  such  demand- 
ant any  personal  property  in  the  build- 
ings which  he  had  erected  on  the  land. 
Doak  V.  Wiswell,  33  IMaine,  355.  See 
Small  V.  Leonard,  20  Verm.  209  ;  Morgan 
V.  Barker,  lb.  0U2;  Briggs  v.  AVells,  12 
Barb.  507.  A  sued  out  a  writ  of  entry  to 
foreclose  a  mortgage  given  by  B  to  secui-e 
the  payment  of  five  promissory  notes. 
B  defended,  j)leading  the  general   issue, 

/and  si)ecifying  certain  grounds  of  defence. 
A  trial  was  had,  and  a  verdict  found  for  A 
upon  whicli  conditional  judgment  was 
subsequently  rendered  for  him ;  and  the 
amount  thereof  not  being  paid,  A  took 
possession  of  the  mortgaged  premises. 
Pending    the    foregoing  proceedings,    A 


five  promissory  notes,  and  B  put  in  his  ^/ 
answer,  defending  on  the  same  grounds  / 
as  he  hail  defended  tlie  action  on  the  / 
mortgage.  The  suit  on  the  note  came  to  ^ 
trial  after  judgment  was  entered  in  the  for- 
mer action ;  and  it  was'  held,  that  B  was 
estopped  by  said  judgment  irom  again 
availing  himself  of  the  grounds  of  de- 
fence upon  which  he  had  before  insisted/ 
Burke  v.  Miller,  4  Gray,  114,  110.  See 
also  Sargent  v.  Fitzpatrick,  lb.  511,  614. 
A  contracted  with  B  to  forward  and  de- 
liver certain  goods  belonging  to  A.  B 
intrusted  them  to  a  carrier,  who  failed  to 
deliver  them.  A  brought  trover  against 
the  carrier;  and  the  carrier  obtained  in 
this  action  a  judgment  on  the  merits 
against  A.  B  also  sued  the  carrier  for 
the  non-delivery  of  the  goods,  and  it  was 
held  that  the  judgment  in  the  suit  brought 
by  A  was  a  bar  to  the  suit  by  B.  Greene 
V.  Clarke,  2  Kernan,  343.  To  an  action 
by  A  against  B  on  a  promissory  note 
given  by  B  to  A  in  payment  for  goods,  B 
pleaded  want  of  consideration  by  reason 
of  false  representations  of  A  concerning 
the  value  of  such  goods.  A  recovered 
judgment  for  part  only  of  the  note.  It 
was  held  that  this  was  a  bar  to  a  subse- 
quent action  brought  by  B  against  A  to 
recover  damages  for  sucli  false  representa- 
tions. Burnett  v.  Smith,  4  Gray,  50.  In 
replevin  by  a  tenant  against  his  landlord, 
who  had  distrained  for  rent  in  arrear,  it 
was  held  that  a  verdict  in  sunuuary  pro- 
ceedings instituted  by  the  landlord,  to  re- 
move the  tenant  for  default  in  the  pa3"ment 
of  rent,  that  no  rent  was  due,  was  conclu- 
sive on  that  point  —  the  same  rent  being 
in  question  in  both  proceedings.  White 
V.   Coatsworth,  2  Seklen,  N.Y.  137.     An 

1  action  bronglit  for  a  part  of  an  entire  and 
indivisi])le  demand,  and  a  recovery  there- 
in, will  bar  a  subsequent  suit  for  the 
residue  of  the  same  demand.  Staj^les  v. 
Goodrich,  21  Barb.  317.  Warren  v. 
Comings,  6  Cush.  403. 
/  Where  it  appears  at  atrial  in  this  state 
(New  York),  that  in  a  former  suit  be- 
tween the  same  parties  in  a  sister  state, 
the  causes  of  action  here  specially  de- 
clared on  and  all  growing  out  of  the  same 
subject-matter,  could  have  been  proved  in 
that  suit,  and  that  the  same  proof  offered 
liere  was,  in  the  former  suit,  properly  in- 
troduced and  considered  on  the  merits, 
and  judgment  rendered  for  the  defendant, 
such  judgment  is  a  bar  to  the  second  suit. 
^ Baker  u.liand,  13  Barb.  152.] 


CHAP,  v.]  RECORDS   AND   JUDICIAL   WRITINGS.  571 

]mr  that  the  same  title  had  been  the  sole  subject  of  litigation  iu  a 
former  action  of  trespass  quare  clausum  /regit,  or  in  a  former  writ 
of  entry,  between  the  same  i)arties,  or  others  privy  in  estate,  was 
held  to  be  a  bad  plea.^  Whether  the  judgment  in  an  action  of 
trespass,  upon  the  issue  of  liherum  tenementum,  is  admissible  in  , 
a  subsequent  action  of  ejectment  between  the  same  parties,  is  not 
perfectly  clear ;  but  the  weight  of  American  authority  is  in  favor 
of  admitting  the  evidence.^ 

§  533.  The  eifcct  of  former  recovery  has  been  very  much  dis- 
cussed, in  the  cases  where  different  actions  in  tort  have  successively 
been  brought,  in  regard  to  the  same  chattel ;  as,  for  example,  an 
action  of  trover,  brought  after  a  judgment  in  trespass.  Here,  if 
title  to  the  property  was  set  up  by  the  defendant  in  the  first  action, 
and  it  was  found  for  him,  it  is  clearly  a  bar  to  a  second  action  for 
the  same  chattel ;  ^  even  though  brought  against  one  not  a  party 
to  the  former  suit,  but  an  accomplice  in  the  original  taking.^  So, 
a  judgment  for  the  defendant  in  trover,  upon  trial  of  the  merits, 
is  a  bar  to  an  action  for  money  had  and  received,  for  the  money 
arising  from  the  sale  of  the  same  goods.^  But,  whether  the  plain- 
tiff, having  recovered  judgment  in  trespass,  without  satisfaction, 
is  thereby  barred  from  afterwards  maintaining  trover  against 
another  person  for  the  same  goods,  is  a  point  upon  which  there 
has  been  great  diversity  of  opinion.  On  the  one  hand  it  is  said 
that,  by  the  recovery  of  judgment  in  trespass  for  the  full  value, 
the  title  to  the  property  is  vested  in  the  defendant,  the  judgment 
being  a  security  for  the  price ;  and  that  the  plaintiff  cannot  take 
them  again,  and  therefore  cannot  recover  the  value  of  another.*^^ 
On  the  other  hand,  it  is  argued,  that  the  rule  of  transit  in  rem 
judicatam  extends  no  farther  than  to  bar  another  action  for  the 
same  cause  against  the  same  party  ;7  that,  on  principle,  the  origi- 
nal judgment  can  imply  nothing  more  than  a  promise  by  the 
defendant  to  pay  the  amount,  and  an  agreement  by  the  plaintiff 

1  Arnold  v.  Arnold,  17  Pick.  4 ;  Bates      .   *  Ferrers  v.  Arden,   Cro.  El.  668 ;   6 
V.    Thompson,    Id.    14,   n. ;    Bennett    v.     Co.  7,  s.  c. 

Holmes,  1  Dev.  &  Bat.  486.  ^  Kitchen  v.  Campbell,  3  Wils.  304 ;  2, 

2  Hoey  V.  Furman,  1  Barr,  295.     And    W.  Bl.  827,  s.  c. 

see  Meredith  r.  Gilpin,  6  Price,  146  ;  Kerr  «  Broome  v.  Wooton,  ^  elv.   6<  ;    Ad- 

z'.  Chess,  7   Watts,   371;    Foster  v.  Mc-  ams  r.  Bnmghton,  2  Stra.  1<>.8  ;  Andrews 

Divit,  9  Watts,  349.  18,  s.  c. ;  White  v.  Phillu-ick.   5   Greenl. 

3  Putt  V.  Boster,  2  Mod.  218 ;  3  Mod.  147 ;  Rogers  v.  Thompson,  1  Bice,  60. 

1,  s.  c.  nom.      Putt  v.   Bawstern,    see   2  "  Drake    v.    Mitcliell,    3     Kast.    2o8 ; 

Show.  211;  Skin.  40,  57;  T.  Eaym.  472,  Campbell    v.    Phelps,    1    Pick.    70,    per 

s.  c.     [See  also  Greely  v.  Smith,  3  W.  &  Wilde,  J. 
M.  236.] 


LAW   OF   EVIDENCE. 


[part  III. 


tluit,  Upon  paynieiit  of  the  money  by  the  defendant,  the  chattel 
shall  be  his  own  ;  and  that  it  is  contrary  to  justice  and  the  analo- 
gies of  the  law,  to  deprive  a  man  of  his  property  without  satisfac- 
tion, unless  by  his  ex})ress  consent.  Solutio  pretii  emptionis  loco 
hahetur.  The  weight  of  authority  seems  iu  favor  of  the  latter 
opinion.^ 

§  534.  It  is  not  necessary,  to  the  conclusiveness  of  the  former 
judgment,  that  issue  should  have  1jeen  taken  npon  the  precise  point 
which  is  controverted  in  the  second  trial ;  it  is  sufficient,  if  that 
point  was  essential  to  the  finding  of  the  former  verdict.  Thus, 
where  the  parish  of  Islington  was  indicted  and  convicted  for  not 
repairing  a  certain  highway,  and  afterwards  the  parish  of  St. 
Pancras  was  indicted  for  not  repairing  the  same  highway,  on  the 
ground,  that  the  line  dividing  the  two  parishes  ran  along  the  mid- 
dle of  the  road  ;  it  was  held,  that  the  former  record  was  admissible 
and  conclusive  evidence  for  the  defendants  in  the  latter  case,  to 
show  that  the  road  was  wholly  in  Islington  ;  for  the  jury  must 
have  found  that  it  was  so,  in  order  to  find  a  verdict  against  the 
defendants.^ 


1  Putt  V.  Eawstern,  3  Mod.  1 ;  Jenk. 
Cent.  p.  189;  1  Shep.  Touchst.  227; 
More  V.  Watts,  12  Mod.  426;  1  Ld. 
Kavm.  G14,  s.  c. ;  Luttrell  v.  Roynell,  1 
:Mod.  282;  Bro.  Abr.  tit.  Jitdgm.  pi.  98; 
Moreton's  case,  Cro.  El.  30;  Cooke  v. 
.Jenner,  Hob.  6G ;  Livingston  v.  Bisbop,  1 
Jobns.  290 ;  Rawson  v.  Turner,  4  Joluis. 
425;  2  Kent,  Comin.  388;  Curtis  v. 
Groat, -6  Johns.  1G8;  Corbett  et  al.  v. 
Barnes,  W.  Jones,  377  ;  Cro.  Car.  443 ; 
7  Vin.  Abr.  341,  pi.  10,  s.  c. ;  Barb  v. 
Fish,  5  West.  Law  Journ.  278.  The  fore- 
going authorities  are  cited  as  establishing 
pilnriples  in  opposition  to  the  doctrine  of 
Broome  v.  Wooton.  The  following  cases 
are  direct  adjudications  to  the  contrary 
of  that  case.  Sanderson  v.  Caldwell,  2 
Aiken,  195;  Osterhout  v.  Roberts,  8 
Cowen,  43 ;  Elliott  v.  Porter,  5  Dana, 
299.  See  also  Campbell  v.  Phelps,  1 
Pick.  70,  per  Wilde,  J. ;  Claxton  v.  Swift, 
2  Show.  441,  494;  Jones  v.  McNeil,  2 
Bail.  466 ;  Cooper  v.  Shepherd,  2  M.  G. 
S.  206.  The  just  deduction  from  all 
the  authorities,  as  well  as  the  right  con- 
clusion upon  principle,  seems  to  be  this, 
—  that  the  Jiid(jiui'nl  in  trespass  or  trover 
will  not  transj'ir  the  title  of  the  goods  to 
the  defendant,  although  it  is  pleadable  iu 
bar  of  any  action  afterwards  brouglit  by 
the  same  plaintiff,  or  those  in  privity 
^vith  him,  against  the  same  defendant,  or 


A 


those  in  privity  with  him.  See  8  Am. 
Law  Mag.  pp.  49-57.  And  as  to  the  origi- 
nal parties,  it  seems  a  just  rule,  applicable 
to  all  personal  actions,  tliat  wherever  two 
or  more  are  liable  jwntlij  and  not  severally, 
a  judgment  against  one,  though  without 
satisfaction,  is  a  bar  to  anotiier  action 
against  any  of-  the  others  for  the  same 
cause ;  but  it  is  not  a  bar  to  an  action 
against  a  stranger.  As  far  as  an  action  in 
the  form  of  tort  can  be  said  to  be  exclu- 
sively joint  in  its  nature,  this  rule  may 
govern  it,  but  no  farther.  This  doctrine, 
as  applicable  to  joint  contracts,  has  been 
recently  discussed  in  England,  in  the  case 
of  King  V.  Hoare,  13  M.  &  W.  494,  in 
which  it  was  held  that  the  judgment 
against  one  alone  was  a  bar  to  a  subse- 
quent action  against  the  other. 

^  Rex  V.  St.  Pancras,  Peake's  Cas. 
219;  2  Saund.  159,  note  (10),  by  Wil- 
liams. And  see  Andrews  v.  Brown,  3 
Cush.  130.  So,  where,  upon  a  complaint 
for  flowing  the  plaintiff's  lands,  under  a 
particular  statute,  damages  were  awarded 
for  the  past,  and  a  prospective  assessment 
of  damages  made,  for  the  future  flowage ; 
upon  a  subsequent  application  for  an  in- 
crease of  the  assessment,  the  defendant 
was  precluded  from  setting  uj)  a  right  in 
himself  to  flow  the  land,  for  the  right 
must  necessarily  have  been  determined  in 
tlie    previous    proceedings.      Adams    v. 


CHAP,  v.]  EECORDS   AND   JUDICIAL   WRITINGS.  .  573 

§  535.  We  have  already  observed,  in  general,  that  parflrs  in  the 
larger  legal  sense,  are  all  persons  liaving  a  right  to  control  the  pro- 
ceedings, to  make  defence,  to  adduce  and  cross-examine  witnesses, 
and  to  appeal  from  the  decision,  if  any  appeal  lies.  Upon  this 
ground,  the  lessor  of  the  plaintiff  in  ejectment,  and  the  tenant, 
are  the  real  parties  to  the  suit,  and  are  concluded  in  any  future 
action  in  their  own  names,  by  the  judgment  in  that  suit.^  So,  if 
there  he  a  trial  between  B.'s  lessee  and  E.,  who  recovers  judg- 
ment ;  and  afterwards  another  trial  of  title  to  the  same  lands, 
between  E.'s  lessee  and  B.,  the  former  verdict  and  judgment  will 
be  admissible  in  evidence  in  favor  of  E.'s  lessee  against  B.  ;  for 
the  real  parties  in  both  cases  were  B.  and  E.^ 

§  536.  The  case  of  j^rivies,  which  has  already  Ijeen  mentioned, 
is  governed  by  principles  similar  to  those  which  have  been  stated 
in  regard  to  admissions ;  ^  the  general  doctrine  being  this,  that  the 
person  who  represents  another,  and  the  person  who  is  represented,' 
have  a  legal  identity ;  so  that  whatever  binds  the  one,  in  relation 
to  the  su1)ject  of  their  common  interest,  l)inds  the  other  also. 
Thus,  a  verdict  and  judgment  for  or  against  the  ancestor  l)ind  the 
heir.'^  So,  if  several  successive  remainders  are  limited  in  the  same 
deed,  a  judgment  for  one  remainder-man  is  evidence  for  the  next 
in  succession.^  But  a  judgment,  to  which  a  tenant  for  life  was  a 
party,  is  not  evidence  for  or  against  the  reversioner,  unless  he 
came  into  the  suit  upon  aid  'prayer.^  So,  an  assignee  is  bound  by 
a  judgment  against  the  assignor,  prior  to  the  assignment.'^  There 
is  the  like  privity  between  the  ancestor  and  all  claiming  under  him, 
not  only  as  heir,  but  as  tenant  in  dower,  tenant  by  the  courtesy, 
legatee,  devisee,  &c.^  A  judgment  of  ouster,  in  a  quo  tvarranto, 
against  the  incumbent  of  an  office,  is  conclusive  evidence  against 


Pearson,  7  Pick.    341.  [*Thc  judgment  is  trespass  against  one  who  justifies  as  the 

conclusive,  not  only  as  to  tiic  i)recise  tacts  servant  of  J.  S.  is'  evidence  against  an- 

involved  directlv  in  the  tbriner  issue,  but  other  defendant  in  another  action,  it  ap- 

as  to  all  facts   incidentally  involved,  and  pearing  that  he  also   acted  by  the  com- 

which  were  in  fact  passed  upon,  as  the  mand  of  J.  S.,  who  was  considered  the 

foundation  of  the  former  decision.     Reg.  real  party   in  both  cases.     Kinnersly  v. 

V.  Hartington,  -1  Ellis  &  Bl.  780.]  Orpe,  2  Doug.  517;  1  Doug.  50. 

1  Doe  V.  Iluddart,  2  Cr.  I\l.  &  R.  316,  '^  Supra,  §§  180,  189,  523. 

322 ;    Doe  v.  Preece,  1  Tvrw.  410 ;  Aslin  *  Locke  v.  Norborne,  3  Mod.  141. 

t'.     Parkin,    2    Burr.    Gb'o;     Wright     v.  &  Bidh  N.  P.  232 ;  Pyke  y.  Crouch,  1 

Tatham,  1  Ad.  &  El.  3,  I'J ;  Bull.  N.  P.  Ld.  Raym.  730. 

232  ;  Graves  v.  Joice,  5  Cowen,  261,  and  «  Bull.  N.  P.  232. 

cases  there  cited  ;    [Aniick  v.  Oyler,  25  "  Adams  v.  Barnes,  17  Jlass.  365. 

Peun.  St.  R.  50G.J                           '  s  Lo[.ke    v.   Norborne,    3    3Iod.    141; 

-  Bull.  N.  P.  232  ;    Calhoun  v.  Dun-  Outram  v.  Morewood,  3  East,  353. 
ning,   4   Dall.    120.     So,   a  judgment    in 


574         •  LAW    OF   EVIDENCE.  [PART   III. 

those  who  derive  their  title  to  office  under  him.^  Where  one  sued 
.ibr  diverting  water  from  his  works,  and  had  judgment ;  and  after- 
wards he  and  another  sued  the  same  defendants  for  a  similar 
injury ;  the  former  judgment  was  held  admissilde  in  evidence 
for  the  plaintiffs,  being  primd  facie  evidence  of  their  privity  in 
estate  with  the  plaintiff  in  the  former  action.^  The  same  rule 
applies  to  all  grantees,  they  being  in  like  manner  bound  l3y  a 
judgment  concerning  the  same  land,  recovered  by  or  against  their 
grantor,  prior  to  the  conveyance.^ 

§  537.  Upon  the  foregoing  principles,  it  is  obvious  that,  as  a 
general  rule,  a  verdict  and  judgment  in  a  criminal  case,  though 
admissible  to  establish  the  fact  of  the  mere  rendition  of  the  judg- 
ment, cannot  be  given  in  evidence  in  a  civil  action,  to  establish  the 
facts  on  ivhich  it  was  rendered.^  If  the  defendant  was  convicted, 
it  may  have  been  upon  the  evidence  of  the  very  plaintiff  in  the 
civil  action ;  and  if  he  was  acquitted,  it  may  have  been  by  collu- 
sion with  the  prosecutor.  But  beside  this,  and  upon  more  general 
grounds,  there  is  no  mutuality ;  the  parties  are  not  the  same ; 
neither  are  the  rules  of  decision  and  the  course  of  proceeding  the 
same.  The  defendant  could  not  avail  himself,  in  the  criminal 
trial,  of  any  admissions  of  the  plaintiff  in  the  civil  action ;  and, 
on  the  other  hand,  the  jury  in  the  civil  action  must  decide  upon 
the  mere  preponderance  of  evidence  ;  whereas,  in  order  to  a  crimi- 
nal conviction,  they  must  be  satisfied  of  the  party's  guilt,  beyond 
any  reasonable  doubt.  The  same  principles  render  a  judgment  in 
a  civil  action  inadmissible  evidence  in  a  criminal  prosecution.^ 

1  Rex  V.  Mayor,  &c.  of  York,  5  T.  R.  have  laid  much  stress  upon  the  question, 
66,  72,  76 ;  Bull.  N.  P.  231 ;  Rex  v.  Heb-  whether  the  plaintiff  in  the  civil  action 
den,  2  Stra.  1109,  n.  (1).  was  or  was  not  a  witness  on  the  indict- 

2  Blakemore  v.  Glamorganshire  Canal  raent.  Upon  which  Parke,  B.,  in  Blake- 
Co.  2  C.  M.  &  R.  133.  more  v.  Glamorganshire  Canal  Co.  2  C.  M. 

3  Foster  v.  E.  of  Derby,  1  Ad.  &  El.  &  R.  13U,  remarked  as  follows :  "  The 
787,  per  Littledale,  J.  case   being    brought  within  the   general 

\  iMead  v.  Boston,  3  Cush.  -104.  In  rule,  that  a  verdict  on  the  matter  in  issue 
one  case  it  was  held,  that  the  deposition  is  evidence  for  and  against  parties  and 
of  a  witness,  taken  Ijcfore  the  coroner,  on  privies,  no  exception  can  be  allowed  in 
an  inquiry  toucliing  the  death  of  a  person  the  particular  action,  on  the  ground  that  a 
killed  by  a  .collision  between  two  vessels,  circumstance  occurs  in  it,  which  forms 
was  receivable  in  evidence,  in  an  action  one  of  the  reasons  why  verdicts  between 
for  the  negligent  management  of  one  of  different  parties  are  held  to  be  inadmissible, 
them,  if  the  witness  be  shown  to  be  be-  anv  more  than  the  absence  of  all  such  cir- 
yond  sea.  Sills  v.  Brown,  0  C.  &  P.  601,  cumstances,  in  a  particular  case,  would  be 
l>er  Coleridge,  J.  But  (/nicre,  and  see  2  allowed  to  form  an  exception  to  the  gene- 
Phil.  Evid.  74,  75;  infia,  §  553.  ral  rule,  that  verdicts  between  other  par- 

5  1  Bull.  N.  P.  233  ;  Rex  v.  Boston,  4  ties    cannot    be    received.     It    is    much 

East,  572;  Jones  v.  White,  1  Stra.  68,  per  wiser,  and  more  convenient  for  the  ad- 

Pratt,  J.     Some  of  the  older  authorities  ministration  of  justice,  to  abide  as  much 


CHAP,  v.]  RECORDS    AND   JUDICIAL   WAITINGS.  575 

• 

§  538.  But,  as  we  have  before  remarked,^  the  verdict  and  judg- 
ment in  any  case  are  always  admissible  to  prove  the  fact,  that  the 
judgment  ivas  rendered,  or  the  verdict  given  ;  for  there  is  a  material 
difference  between  proving  the  existence  of  the  record  and  its 
tenor,  and  using  the  record  as  the  medium  of  proof  of  the  matters 
of  fact  recited  in  it.     In  the  former  case,  the  record  can  never  be 
^   K     considered  as  re%  inter  alios  acta;  the  judgment  being  a  puljlic 
-J     transaction,  rendered  by  public  authority,  and  being  presumed  to 
Ki       be  faithfully  recorded.     It  is  therefore  the  only  proper  legal  evi- 
^        dence  of  itself,  and  is  conclusive  evidence  of  the  fact  of  the  rendi- 
^  -^    lion  of  the  judgment,  and  of  all  the  legal  consequences  resulting 
^  f     from  that  fact,  whoever  may  be  the  parties  to  the  suit  in  which  it 
L'^      is  offered  in  evidence.     Thus,  if  one  indicted  for  an  assault  and 
battery  has  been  acquitted,  and  sues  the  prosecutor  for  malicious 
J        prosecution,  the  record  of  acquittal  is  evidence  for  the  plaintiff,  to 
I  establish  that  fact,  notwithstanding  the  parties  are  not  the  same. 
But  if  he  were  convicted  of  the  offence,  and  then  is  sued  in  tres- 
pass for  the  assault,  the  record  in  the  former  case  would  not  be 
evidence  to  establish  the  fact  of  the  assault ;  for,  as  to  the  matters 
involved  in  the  issue,  it  is  res  inter  alios  acta. 

§  539.  The  distinction  between  the  admissibility  of  a  judgment 
as  a  fact,  and  as  evidence  of  ulterior  facts,  may  be  further  illus- 
trated by  the  instances  in  which  it  has  been  recognized.  Thus,  a 
judgment  against  the  sheriff  for  the  misconduct  of  his  deputy  is 
evidence  against  the  latter  of  the  fact,  that  the  sheriff  has  been 
compelled  to  pay  the  amount  awarded,  and  for  the  cause  alleged ; 
but  it  is  not  evidence  of  the  fact  upon  which  it  was  founded, 

as  possible  by  general  rules."    A  record  davit,  in  which  the  defendant  had  sworn 

of  judgment  in  a  criminal  case,  upon   a  that  the  prosecutor  was  indebted  to  him 

plea  of  "  guilty,"  is  admissible  in  a  civil  in  £40,  and  the  civil  suit  being  submitted 

action  against  the  party,  as  a  solemn  judi-  to  arbitration,  the  arbitrator  awarded  that 

cial  confession  of  the  fact ;    and,  accord-  notliing  was  due,  the  award  was  oflered  in 

ing  to  some  authorities,  it  is  conclusive,  evidence  against  the  prisoner,  as  proof  of 

But    its   conclusiveness   has    since    been  tlie  falsity  of  his  affidavit ;  but  the  court 

doubted ;    for   the   plea   may   have   been  held   it   as  merely  tlie  declaration  of  the 

made  to  avoid  expense.     See  Phil.  &  Am.  arbitrator's  opinion,  and  tlierefore  not  ad- 

on  Evid.  523,  n.    (4) ;    2  JPTiil,  Evid.  25;  missible  in  a  criminal  proceeding.      [The 

Bradley  i'.  Bradley,  2  Fairf.  367  ;  Kc^ina  record  of  the  conviction  of  a  thief,  on  his 

V.   Moreau,    12  Jur.  626;    11   Ad.  &  El.  plea  of  "  guilty "  to  an  indictment  against 

1028,  N.  s. ;  Clark  v.  Irvin,  9  Ham.  131.  him  alone  for  steahng  certain  property,  is 

But  the  plea  of  nolo  contendere  is  an  admis-  not  admissible  in  evidence  to  prove  the 

sion  for  that  trial   only,   and   is   not  ad-  theft,  on  the   trial   of  a  receiver   of  that 

missible   in   a   subsequent   action.     Com-  property,  upon  an  indictment  against  him 

monwealth  v.  liorton,  U  Pick.  2U6 ;  Guild  alone,    which   indictment   does   not    aver 

V.  Lee,  3  Law  Keporter,  p.  423 ;  supra,  §§  that  the  tliief  has  been  convicted.     Com- 

179,  216.     In   Regina  v.  Moreau,  which  monwealth  v.  EUsha,  3  Gray,  460.] 
was  an  indictment  for  perjury  in  an  affi-  ^  Supra,  §  527. 


57G  LAW    OF    EVIDENCE.  [PART    III. 

namely,  the  misconduct  of  the  deputy,  unless  he  was  notified  of 
the  suit  and  re(iuired  to  defend  it.^     So  it  is  in  other  cases,  where 
the  ofFiecr  or  party  has  a  remedy  over.^     So,  where  the  record  is 
nuilter  of  inducement,  or  necessarily  introductory  to  other  evi- 
dciice ;  as,  in  an  action  against  the  sheriff  for  neglect,  in  regard  to 
an  execution ;  ^  or  to  show  the  testimony  of  a  witness  upon  a 
former  trial ;  ■*  or  where  the  judgment  constitutes  one  of  the  muni- 
ments of  the  party's  title  to  an  estate ;  as,  where  a  deed  was  made 
under  a  decree  in  chancery,^  or'  a  sale  was  made  by  a  sheriff,  upon 
j  an  execution.*'    So,  where  a  party  has  concurrent  remedies  against 
i  several,  and  has  obtained  satisfaction  upon  a  judgment  against 
A)ne,  it  is  evidence  for  the  others.'^      So,  if  one  be  sued  alone, 
upon  a  joint  note  by  two,  it  has  been  held,  that  the  judgment 
against  him  may  be  shown  by  the  defendants,  in  bar  of  a  second 
suit  against  both,  for  the  same  cause,  to  prove  that,  as  to  the 
.former  defendant,  the  note  is  extinct.^     So  a  judgment  iiiter  alios 
is  admissible,  to  show  the  character  in  which  the  possessor  holds 
his  lands.^ 
/     §  539a.  But  where  the  contract  is  several  as  ivell  as  joint,  it 
seems  that  the  judgment  in  an  action  against  one  is  no  bar  to  a 
subsequent  action  against  all ;    nor  is  the  judgment  against  all,    t^ 
jointly,  a  bar  to  a  subsequent  action  against  one  alone.    For  Avheu  "^^ 
a  party  enters  into  a  joint  and  several  obligation,  he  in  effect 
\  ■  agrees  that  he  will  be  liable  to  a  joint  action,  £^ni  to  a  several 
action  for  the  debt.     In  either  case,  therefore,  the*  bar  of  a  former 
judgment  would  not  seem  to  apply ;  for,  in  a  legal  sense,  it  was 
not  a  judgment  between  the  same  parties,  nor  upon  the  same  con- 
tract.    The  contract,  it  is  said,  does  not  merely  give  the  obligee 
an  election  of  the  one  remedy  or  the  other,  but  entitles  him  at 
\once  to  both,  though  he  can  have  but  one  satisfaction.^^ 

1  Tyler  v.  Ulmer,  12  Mass.  1C6,  per  «  Ward  v.  Johnson,  13  Mass.  148.    See 

Parker,  C.  J.  also  Leclimere   v.  Fletcher,  1  C.  &.  M. 

-  Kip  V.  Bri<rham,   6  Johns.   158 ;    7  623,  G34,  G35,  per  Bayley,  E. 

Johns.    168 ;    Griffin  v.   Brown,    2  Pick.  ^  Davis  v.  Loundes,  1  Bing.  N.  c.  607, 

804;    Weld    v.    Nichols,    17   Pick.    538;  per  Tindal,  C.  J.     See  furtiier,   supra,   § 

Head  V.  McDonald,  7  IMonr.  203.  527o,-  AVells  v.  Compton,  3  Kob.  Louis. 

3  Adams  v.  Balch,  5  Greenl.  188.  K.  171. 

*  Clarges  v.   Slierwin,   12  Mod.   343;  i"  The   United   States  v.   Cushman,  2 

Foster  v.  Shaw,  7  S.  &  R.  1.5G.  Sumn.  K.  426,  437-441,  per  Story,  J.    See 

6  Barr  v.  Gratz,  4  Wheat.  213.  also  Sheeliy  v.  Mandevillu,  6  Cranch.  253, 

«  Witmer  v.  Schlatter,  2  Kawle,  359;  265;    Lechmere  v.  Fletcher,    1  C.  &  M. 

Jackson  v.  Wood,  3  Wend.  27,  34 ;  Fowler  623,  634,  635,  per  Bayley,  B. ;  [Ivirkpat- 

V.  Savage,-  3  Conn.  90,  96.  rick  v.  Stiugley,  2  Carter,  269.1 

"  FarweU  v.  Ililliard,  3  N.  Hanip.  318. 


CHAP,  v.]  RECORDS   AND   JUDICIAL   WRITINGS.  577 

§  540.  In  regard  to  foreign  judgments,  they  arc  usually  consid- 
ered in  two  general  aspects:  first,  as  to  judgments  in  rem;  and, 
secondly,  as  to  judgments  in  personam.  The  latter  arc  again 
considered  under  several  heads :  first,  where  the  judgment  is  set 
up  by  way  of  defence  to  a  suit  in  a  foreign  tribunal ;  secondly, 
where  it  is  sought  to  be  enforced  in  a  foreign  tribunal  against  the 
original  defendant,  or  his  property ;  and,  thirdly,  where  the  judg- 
ment is  either  between  subjects,  or  between  foreigners,  or  between 
foreigners  and  subjects.^  But,  in  order  to  found  a  proper  ground 
of  recognition  of  a  foreign  judgment,  under  whichsoever  of  these 
aspects  it  may  come  to  be  considered,  it  is  indispensable  to 
establish,  that  the  court  which  pronounced  it  had  a  lawful  juris-" 
diction  over  the  cause,  over  the  thing,  and  over  the  parties.  If 
the  jurisdiction  fails  as  to  either,  it  is  treated  as  a  mere  nullity, 
having  no  obligation,  and  entitled  to  no  respect  beyond  the  domes- 
tic tribunals  .2 

§  541.  As  to  foreign  judgments  in  rem,  if  the  matter  in  con- 
troversy is  land,  or  other  immovable  property,  the  judgment  pro- 
nounced in  the  forum  rei  sitce  is  held  to  be  of  universal  obligation, 
as  to  all  the  matters  of* right  and  title  which  it  professes  to  decide 
in  relation  thereto.^  "The  same  principle,"  observes  Mr.  Jus- 
tice Story,*  "  is  applied  to  all  other  cases  of  proceeding  in  rem^ 
where  the  subject  is  movable  property,  within  the  jurisdiction  of 
the  court  pronouncing  the  judgment.^  Whatever  the  court  settles 
as  to  the  right  or  title,  or  whatever  disposition  it  makes  of  the 
property  by  sale,  revendication,  transfer,  or  other  act,  will  be  held 
valid  in  every  other  country,  where  the  same  question  comes 
directly  or  indirectly  in  judgment  before  any  other  foreign  tri- 
bunal. This  is  very  familiarly  known  in  the  cases  of  proceedings 
in  rem  in  foreign  courts  of  admiralty,  whether  they  are  causes  of 

1  In  what  follows  on  the  subject  of  in  favor  of  the  superior  courts,  in  a  state 
forei^ni  juilunients,  I  have  simply  tran-  or  country,  in  tiieir  own  tribunals,  (ira- 
scribeil  and  abridged  what  has  recently  ham  v.  Wliitely,  2  Dntcber,  2-34 ;  Gould- 
been  written  bv  ^i^.  Justice  Story,  in  his  int;  v.  Clark,  34  N.  H.  148.  But  wliore 
learned  Counnentaries  on  the  Conflict  of  the  question  of  jurisdiction  is  establislied, 
Laws,  ch.  15  (2d  edit.).  the  same  favorable  presumption  should  be 

-    Story,    Confl.   Laws,    §§    584,   586 ;  applied  to  all  judgments.     State  v.  llinch- 

Rj)se  V.  Himelv,  4  Cranch,  '209,  270,  per  man,  27  Tenn.  St.  479.] 
INIarshall,   C.  J. ;    Smith  v.  Knowlton.  11  »  Story,  Confl.  Laws,  §§  532,  545,  551, 

N.  Ilainp.  R.  191 ;  Hansely  v.  Webster,  591. 

Id.  299.     [  *  There  scenes  to  be  no  such  ■•  Story,  Confl.  Laws,  §  592.     See  also 

presumption  in  favor  of  the  jurisdiction  of  Id.  §  097. 

foreign  courts,  or  of  inferior  domestic  tri-  ^  See  Kames  on  Equity,  B.  3,  cli.  8, 

bunals,  according  to  the  maxim  omnui  jmv-  §  4. 
suintinttir  rite  eaae  acta,  as  that  wliicli  exists 
VOL.  I.                                                  49 


578  LAW    OF    EVIDENCE.  [PART    III. 

prize,  or  of  l)()tt()inry,  or  of  salvage,  or  of  forfeiture,  or  of  any 
of  the  like  nature,  over  wliich  such  courts  have  a  rightful  juris- 
diction, founded  on  the  actual  or  constructive  possession  of  the 
sulijeet-matter.^  The  same  rule  is  applied  to  other  courts  pro- 
ceeding in  rem,  such  as  the  court  of  cxcheciucr  in  England,  and 
to  other  courts  exercising  a  like  jurisdiction  in  rem  upon  seizures.^ 
And  in  cases  of  tliis  sort  it  is  wholly  immaterial  whether  the 
judgment  be  of  acquittal  or  of  condemnation.  In  both  cases  it  is 
equally  conclusive.^  But  ,the  doctrine,  however,  is  always  to  be 
understood  "with  this  limitation,  that  the  judgment  has  been 
obtained  bond  fide  and  without  fraud ;  for  if  fraud  lias  intervened, 
jt  will  doubtless  avoid  the  force  and  validity  of  the  sentence.'^  So 
it  must  appear  that  there  have  been  regular  proceedings  to  found 
the  judgment  or  decree ;  and  that  the  parties  in  interest  in  rem 
haTO  Jiad  noticCj  or  an  opportunity  to  aj3pe_ar^and  defend  Jheir 
interests,  either  personally,  or  by  their  proper  _representatives, 
Ijcfore  it  was  jjronou^iced ;  for  the  common  justice  of  all  nations 
requires  that  no  condemnation  shall  be  pronounced,  before  the 
\party  lias  an  o})portunity  to  be  heard."  ^ 

§  542.  Proceedings  also  by  creditors  against  the  personal  prop- 
erty of  their  debtor,  in  the  hands  of  third  persons,  or  against  debts 
due  to  him  l)y  such  third  persons  (commonly  called  the  process 
of  foreign  attachment,  or  garnishment,  or  trustee  process^,  are  treated 
as  in  some  sense  proceedings  in  rem,  and  are  deemed  entitled  to 

1  Croudson  v.  Leonard,  4  Cranch,  43";  contrary  to  the  laws  of.nations  ;  3  B.  &  P. 

Williams    v.   Arniroyd,    7    Cranch,   4:i;J;  215,  per  Ld.  Alvanley,  C.  J. ;  or,  if  there 

l\o.se  V.  Ilimely,  4  Cranch, '241 ;   Hudson  be   any  ambiguity   as   to   what  was   tiie 

»;.  Giiestier,  4  Cranch,  293;  The  Mary,  9  ground  of  condenmation  ;  it  is  not  conclu- 

Cranch,  12(5,  142-146;  1  Stark.  Kvid.  pp.  sive.     Dalgleish  v.  Hodgson,  7  Bing.  4'.)5, 

240,  247,  248;  Marshall  on  Insur.  B.   1,  504. 

ch.  0,  §  6,  pp.  412,  435  ;  Cirant  v.  McLach-  -  Ibid. ;  1  Stark,  on  Evid.  pp.  228-232, 
lin,  4  Johns.  34;  Peters  v.  The  Warren  246,  247,  248;  Gelston  v.  Iloyt,  3  Wheat- 
Ins.   Co.  3  Sumner,  38'J ;  Bland  r.  Bam-  on,  246 ;  Williams  v.  Armroyd,  7  Cranch, 
field,  3  Swanst.  6U4,  605;  Bradstreet  v.  423. 
Neptune  Insur.  Co.  3  Sunmer,  600 ;  Ma-          '^  Ibid. 

goun  i\  New  England  Insur.  Co.  1  Story,  *  D.uchess  of  Kingston's  case,  11  State 

K.  157.     The  different  degrees  of  credit  Trials,   pp.    261,    202;    s.  c.    20   Howell, 

given  to  foreign  sentences  of  condenina-  State  Trials,  p.  355;  Id.  p.  538,  the  ()i)in- 

tion  in  prize  causes,  by  the  American  state  ion  of  the  judges ;  Bradstreet  r.  The  Nep- 

courts,   are  stilted   in  4  Couen,  II.   520,  tune  Insur.  Co.  3  Sunnier,  600 ;  Magoun 

note  3.     1   Stark.  Evid.  232  (6th  edit.),  v.  The  New  England  Insur.  Co.  1  Story, 

notes  by  Metcalf.  See  also  2  Kent,  Conun.  R.  157.    If  tlie  foreign  court  is  constituted 

120,  121.      If  a  foreign  sentence  of  con-  by  persons  interested  in  the  matter  in  dis- 

denniation  as  prize  is  manifestly  errone-  pute,  the  judgment  is  not  binding.     Price 

ous,  as  if    it   professes  to    be    made    on  v.  Dewhurst,  8  Sim.  27',). 
particular  grounds,  which  are   set  forth,  ^  Sawyer  v.  Maine  Fire  and  Mar.  Ins. 

but  which  i)lainly  do  not  warrant  the  de-  Co.  12  Mass.  291 ;  Bradstreet  v.  The  Nep- 

cree;  Calvert  v.  Bovil,  7  T.  K.  -523;  Pol-  tune  Ins.  Co.  3  Sumner,  600;  Magoun  v. 

larti  V.  Bell,  8  T.  II.  444 ;  or,  on  grounds  N.  England  Insur.  Co.,  1  Story,  R.  157. 


CHAP,  v.]  RECORDS    AND    JUDICIAL    WIJITINGS.  679 

the  same  consideration.^  l>ut  in  this  last  class  of  cases  we  are 
especially  to  bear  in  mind,  that,  to  nialcc  any  judgment  effectual, 
the  court  must  possess  and  exercise  a  riglitfiil  jurisdiction  over  the 
res,  and  also  over  the  person,  at  least  so  far  as  the  ren  is  concerned  ; 
otherwise  it  will  be  disregarded.  And  if  the  jurisdiction  over  the 
res  be  Avell  founded,  but  not  over  the  person,  except  as  to  tlie  res, 
the  judgment  will  not  be  either  conclusive  or  binding  upon  the 
party  in  personam,  although  it  may  be  in  rem?" 

§  543.  In  all  these  cases  the  same  principle  prevails,  that  the 
judgment,  acting  in  rem,  shall  ba  held  conclusive  iqjon  the  title  and 
transfer  and  disposition  of  the  property  itself,  in  whatever  place 
the  same  property  may  afterwards  be  found,  and  by  whomsoever 
the  latter  may  be  questioned ;  and  whether  it  be  directly  or  inci- 
dentally brought  in  question.  But  it  is  not  so  universally  settled, 
that  the  judgment  is  conclusive  of  all  points  which  are  incidentally 
disposed  of  by  the  judgment,  or  of  the  facts  or  allegations  upon 
which  it  professes  to  be  founded.  In  this  respect,  different  rides 
are  adopted  by  different  states,  both  in  Europe  and  in  America. 
In  England,  such  judgments  are  held  conclusive,  not  only  in  rem, 
but  also  as  to  all  the  points  and  foots  which  they  professedly  or 
incidentally  decide.'^  In  some  of  the  American  states  the  same 
doctrine  prevails.  While  in  other  American  states,  the  judgments 
are  held  conclusive  only  in  rem,  and  may  be  controverted  as  to  all 
the  incidental  grounds  and  facts  on  which  they  profesg  to  be 
founded.* 

§  544.  X  similar  doctrine  has  been  contended  for,  and  in  many 
cases  successfully,  in  favor  of  sentences  which  touch  the  general 
capacity  of  persons,  and  those  which  concern  marriage  and  divorce. 


1  See  cases  cited  in  4  Cowen,  R.  520,  the  plaintifT  and   others.     The  property 

521,    n.  ;     IStorv,    Confl.    Laws,    §   549 ;  was  seized  and  condemned  in  tlie  Danisli 

Holmes  r.  Eein'sen,  20  Jolnis.  229;  Hnil  courts.     Lord  Xottinoliani  held  the  sen- 

V.   Blake,    13   Mass.    158;    .McDanicl    v.  tence   conchisive   a,<;ainst   the    suits    and 

Ilii-^lies,  3  East,  otJG  ;  Phillips  i-.  Hunter,  awarded  the  injunction  accordingly. 
2  IL  15hu'k.  4i>2,  410.  *  Story,    Confl.    Laws,   §  593.     See  4 

-  Storv,  C-'onrt.   Laws,  §  502  a.      See  Cowen,  K.  522,  n.  and  cases  there  cited ; 

also  Id.  §"549,  and  note ;  Bissell  v.  Briggs,  Vandenhenvel  r.   U.   Insur.  Co.  2  Cain. 

9  Mass.  498;    3  Bursje,   Conun.   on  Col.  Cases  in  Err.  217;  2  Johns.  Cases,  451; 

&  For.  Law,  pt.  2,  cli.  24,  p.  1014-1019.  ,  Id.  4S1  ;  Kohinson  r.  Jones,  8  Mass.  536 ; 

■s  In  IJiad  r.  Banificld.  decided  by  Lord  IMaley  r.  Sliattuck,  3  Cranch,  4S8 ;  2 
Nottingham,  and  reported  in  3  Swanst.  Kent,  Comm.  Lect.  37,  pp.  120,  121,  4th 
604,  a  perpetual  injunction  was  awarded  edit.,  and  cases  there  cited  ;  Tarlton  v. 
to  rcsn-ain  certain  "suits  of  trespass  and  Tarlton,  4  M.  &  Selw.  20;  Peters  v.  War- 
trover  tor  seizing  the  goods  of  the  defen-  ren  Insur.  Co.  3  Sunin.  389;  Gelston  v. 
dant  (Bamtield)  "for  trading  in  Iceland,  Iloyt,  3  Wheat.  246. 
contrary  to  certain  privileges  granted  to 


580  LAW    OF    EVIDENCE.  [PART    III. 

Foreign  jurists  strongly  contend  tliat  the  decree  of  a  foreign  court, 
declaring  the  state  (statiis)  of  a  person,  and  placing  him,  as  an 
idiot,  or  a  minor,  or  a  prodigal,  under  guardianship,  ought  to  be 
deemed  of  universal  authority  and  obligation.  So  it  doubtless 
would  be  deemed,  in  regard  to  all  acts  done  within  the  jurisdiction 
of  the  sovereign  whose  tribunals  pronounced  tlie  sentence.  But 
in  the  United  States  the  rights  and  powers  of  guardians  are  con- 
sidered as  strictly  local ;  and  no  guardian  is  admitted  to  have  any 
right  to  receive  the  profits,  or  to  assume  the  possession  of  the  real 
estate,  or  to  control  the  person  of  his  ward,  or  to  mahitain  any 
action  for  the  personalty,  out  of  the  states,  under  whose  authority 
he  was  appointed,  witliout  having  received  a  due  appointment  from 
the  proper  authority  of  the  state,  within  which  the  property  is 
situated,  or  the  act  is  to  be  done,  or  to  whose  tribunals  resort  is  to 
be  had.  The  same  rule  is  also  applied  to  the  case  of  executors  and 
administrators} 

§  545.  In  regard  to  marriages^  the  general  principle  is,  that 
between  persons  sui  juris,  marriage  is  to  be  decided  by  the  law 
of  the  place  where  it  is  celebrated.  If  valid  there,  it  is  valid  every- 
where. It  has  a  legal  ubiquity  of  obligation^.  If  invalid  there,  it 
is  invalid  everywhere.  The  most  prominent,  if  not  the  only  known 
exceptions  to  this  rule,  are  marriages  involving  polygamy  and 
incest ;  those  prohibited  by  the  public  law  of  a  country  from 
motives  of  policy ;  and  those  celebrated  in  foreign  countries  by 
subjects  entitling  themselves,  under  special  circumstances,  to  the 
i^enefit  of  the  laws  of  their  own  country .^  As  to  sentences  con- 
firming marriages,  some  English  jurists  seem  disposed  to  concur 
with  those  of  Scotland  and  America,  in  giving  to  them  the  same 
conclusiveness,  force,  and  effect.  If  it  were  not  so,  as  Lord  Hard- 
wicke  observed,  the  rights  of  mankind  would  be  very  precarious. 
But  others,  conceding  that  a  judgment  of  a  third  country,  on  the 
validity  of  a  marriage  not  within  its  territories,  nor  had  between 
subjects  of  tliat  country,  would  be  entitled  to  credit  and  attention, 
deny  that  it  would  be  universally  binding.^     In  the  United  States, 

1  Story,  Confl.  Laws,  §§  499,  504,  594 ;  [S^e  post,  vol.  2  (7th  edit.),  §  460-464,  tit. 
Morrell    v.   Dickoy,    1    Johns,   ch.    153 ;     Marriage.] 

Kraft  V.  Wickey,  4  G.  &  J.  832  ;  Dixon  v.         ^  Koach  v.  Garvan,  1  Ves.  157  ;  Story, 

Kamsay,  3  Crancli,  819.     See,  as  to  for-  Confl.  Laws,  §§  595,  596 ;  Sinclair  v.  Sin- 

eign  executors  and  administrators.  Story,  clair,    1    Hagg.   Consist.  R.  297 ;    Scrim- 

Confi.  Laws,   §   513-523 ;    [supra,  §  525,  shire  v.  Scrimshire,  2  Hagg.  Consist.  R. 

and  notes.]  395,  410. 

2  Story,   Confl.  Laws,  §§  80,  81,  113. 


CHAP,  v.]  RECORDS   AND   JUDICIAL   WRITINGS.  581 

however,  as  well  as  in  Scotland,  it  is  firmly  held,  that  a  sentence 
of  divorce,  obtained  bond  fide  and  without  fraud,  pronounced 
between  parties  actually  domiciled  in  the  country,  whether  natives 
or  foreigners,  by  a  competent  tribunal,  having  jurisdiction  over  the 
case,  is  valid,  and  ought  to  be  everywhere  held  a  complete  dissolu- 
tion of  the  marriage,  in  whatever  country  it  may  have  been  origi- 
nally celebrated.^ 

§  54G.  '^  In  the  next  place,  as  to  judgments  in  persojiam  Avliich 
are  sought  to  be  enforced  by  a  suit  in  a  foreign  tribunal.  There 
has  certainly  been  no  inconsiderable  fluctuation  of  opinion  in  the 
English  courts  up'on  this  subject.  It  is  admitted  on  all  sides,  that, 
in  such  cases,  the  foreign  judgments  are  primd  facie  evidence  to 
sustain  the  action,  and  are  to  be  deemed  right  until  the  contrary 
is  established ;  ^  and  of  course,  they  may  be  avoided,  if  they  are 
founded  in  fraud,  or  are  pronounced  by  a  court  not  having  any 
competent  jurisdiction  over  the  cause.^  But  the  question  is, 
whether  they  are  not  deemed  conclusive ;  or  whether  the  defendant 
is  at  liberty  to  go  at  large  into  the  original  merits,  to  show  that  the 
judgment  ought  to  have  been  difierent  upon  th^  merits,  although 
obtained  bond  fide.  If  the  latter  course  be  the  correct  one,  then 
a  still  more  embarrassing  consideration  is,  to  what  extent,  and  in 
what  manner,  the  original  merits  can  be  properly  inquired  into."  * 
But  though  there  remains  no  inconsiderable  diversity  of  opinion 
among  the  learned  judges  of  the  different  tribunals,  yet  the 
present  inclination  of  the  English  courts  seems  to  be,  to  sustain 
the  conclusiveness  of  foreign  judgments.^ 

1  Story,  Confl.  Laws,  §  597.     See  also  8  Simons,  279,  302;   Don  v.  Lippman,  5 

the  lucid  judgment  delivered  by  Gibson,  Clark  &  Finn.  1,  19,  20,21;  BaukofAus- 

C.  J.,  in  Dorsey  r.  Dors^ey,  7  Watts,  350.  tralasia  v.  Nias,  15  Jur.  967.     So,  iftiie  de- 

The  whole  subject  of  foreign  divorces  has  fendant  was   never  served  with  process, 

received  a   masterly   discussion    by   Mr.  Ibid.     And  see  Henderson  v.  Henderson, 

Justice   Storv,   in    his    Commentaries  on  6  Ad.  &  El.  288,  n.  s. 

the  Conflict  of  Laws,  ch.  vii.  §  200-230  b.  *  Story,  Confl.  Laws,  §  COB. 

■•^  See  Walker  /•.  Witter,  1  l")ong.  1,  and  ^  \^\    '^^  (•,04_  t;05_  600.     See  Guinness 

cases  there  cited ;    Arnold   v.  Kedfern,  3  r.  Carroll,  1  Barn.  &  Adolph.  459 ;  Bec- 

Bing.    353 ;    Sinclair    v.   Fraser,   cited    1  quet   v.   McCarthy,   2  B.  &  A.  951.     In 

Doug.  4,  5,  note  ;  Houlditch  v.  Donegal,  Holditch  r.  Donegal,  8  Bhgli,  301,  337- 

2  Clark  &  Finnell,  470;  s.  c.  8  Bligh,  301  ;  340,  Lord  Brougham  held  a'foreign  judg- 

Don  c.  Lippman,  5  Clark  &  Finn.  1,  19,  nient  to  be  only  })iiina  fhcle  evidence,  and 

20;  Price  v.  Dewhnrst,  8  Sim.  279 ;  Ali-  gave  his  rca.sons  at  large  for  that  opinion, 

von  V.  Furnival,  1  Cronip.  Mees.  .t  Rose.  On  the  other  hand.  Sir  L.  Shadwell,  in 

277;  Hall  v.  OdWer,  11  East,  118;  Ripple  ISIartin  v.  Nicholls,  3  Sim.  458,  held  the 

V.  Ripple,  1  Rawle,  obtl.  contrary  opinion,  that  it  was  conclusive  ; 

^  See  Bowles  <•.  ( )rr.  1  Younge  &  Coll.  and  also  gave  a  very  elaborate  judgment 

464;  Story,  Con  1.  Laws,  §«5  544,  545-550;  upon  the  point,  in  which  he  reviewed  tlie 

Ferguson  I'.  Mah  )n,  3  Ferry  &  Dav.  143;  principal    authorities.       Of    course,    the 

11  Ad.  &  El.  179,  >.  c. ;  Trice  v.  Dewhurst,  learned  judge  meant  to  except,  and  did 

49* 


582 


LAW    OF    EVIDENCE. 


[part  III. 


[*  §  iAGa.  "\Vo  have  kiteiy  had  occasion  carefully  to  review  the 
law  upon  this  subject,  and  we  beg  leave  here  to  repeat  what  we 
then  said.i  There  is  no  title  connected  with  the .  general  subject 
of  the  conflict  of  laws,  more  embarrassing  than  that  which  we  are 
now  considering.  It  has  undergone  considerable  discussion  since 
the  lamented  decease  of  our  author.  We  have  therefore  felt  com- 
pelled to  state,  as  far  as  we  could,  the  present  state  of  the  English 
law  in  regard  to  it. 

§  546J.  Whenever  it  becomes  important  to  determine  what  is 
the  law  of  a  foreign  country,  tlie  decisions  of  the  highest  judicial 
tribunals  of  that  country  arc  held  conclusive  in  regard  to  it.  This 
is  partly  npon  the  ground,  that  the  question  turns  upon  a  fact, 
and  that  fact  is  the  true  state  of  the  law  of  the  country,  which  is 
but  another  name  for  tlie  decisions  of  the  highest  legal  tribunals 
of  the  country ;  so  that,  in  truth,  the  law  and  the  decisions  of 
these  tribunals  thus  become  identical.  This  is  illustrated  in  a 
recent  case.^     And  a  similar  conclusion  was  arrived  at  in  a  later 


u 


except  in  a  later  case  (Price  v.  Dewhurst, 
8  Sim.  27y,  302),  judgments  which  were 
])rofluce(l  by  frand.  See  also  Don  v.  Lipp- 
'man,  5  Clark  &  Finnell,  1,  20,  21  ;  Story, 
C-'onll.  Laws,  §  545-550,  605 ;  Alivon  v. 
Furnival,  1  Cromp.  Mees.  &  Rose.  277, 
28-t.  "  It  is,  indeed,  very  difficult,"  ob- 
serves ^Ir.  Justice  Story,  "  to  perceive 
what  could  "be  done,  if  a  different  doctrine 
were  niaintiiiiiable  to  the  full  extent  of 
opening  all  tlie  evidence  and  merits  of  the 
cause  anew,  on  a  suit  upon  the  foreign 
judgment.  Some  of  the  witnesses  may 
be  since  dead  ;  some  of  the  vouchers  may 
be  lost  or  destroyed.  The  merits  of  the 
case,  as  formerly  before  the  court,  upon 
the  whole  evidence,  may  have  been  de- 
cidedly in  favor  of  the  judgment;  upon  a 
partial  possession  of  tiie  original  evidence, 
they  may  now  appear  otherwise.  Suppose 
a  ease  purely  sounding  in  damages,  such 
as  an  action  for  an  assault,  for  slander,  for 
conversion  of  property,  for  a  malicious 
prosecution,  or  for  a  criminal  conversa- 
tion ;  is  the  defendant  to  be  at  liberty  to 
retry  tlie  whole  merits,  and  to  make  out, 
if  he  can.  a  new  case,  upon  new  evidence  ? 
Or,  is  the  court  to  review  the  former  de- 
cision, like  a  court  of  appeal,  upon  tlie  old 
evidence  '.  In  a  case  of  covenant,  or  of 
debt,  or  of  a  breach  of  contract,  are  all  the 
circumstances  to  be  re-examined  anew  ? 
If  they  are,  by  what  laws  and  rules  of  evi- 
dence and  principles  of  justice  is  the  valid- 
ity of  the  original  judgment  to  be  ti'ied  ? 
Is  the  court  to  open   the  judgment,  and 


to  proceed  ex  aiquo  et  bono  ?  Or  is  it  to 
administer  strict  law,  and  stand  to  the 
doctrines  of  the  local  administration  of 
justice?  Is  it  to  act  ujion  the  rules  of 
evidence  acknowledged  in  its  own  juris- 
prudence, or  upon  those  of  the  foreign 
jurisprudence  1  These  and  many  more 
questions  might  be  put,  to  show  the  intrin- 
sic difficulties  of  the  subject.  Indeed  the 
rule,  that  the  judgment  is  to  be  prima 
fade  evidence  for  the  ])laintiif,  would  be  a 
mere  delusion,  if  the  defendant  might  still 

'  question  it,  by  opening  all  or  any  of  the 
original  merits  on  his  side ;  for,  under 
such  circumstances,  it  would  be  equiva- 
lent to  granting  a  new  trial.  It  is  easy  to 
understand  that  the  defendant  may  be  at 
Hberty  to  impeach  the  original  justice  of 
the  judgment,  by  showing  that  the  court 
had  no  jm-isdiction;  or,  that  he  never  had 
any  notice  of  the  suit ;  or,  that  it  was  pro- 
ciux'd  by  fraud  ;  or,  that  npon  its  face  it  is 
founded  in  mistake  ;  or,  that  it  is  iri-egular, 
and  bad  by  the  local  law,  Fori  rei  Judiailie. 
To  such  an  extent,  the  doctrine  is  intelli- 
gible and  practicable.     Beyond  this,  the 

;  right  to  impugn  the  jiidgment  is  in  legal 
effect  the  right  to  retry  the  merits  of  the 
original  cause  at  large,  and  to  put  the 
defendant   upon   proving   those    merits." 

\  See  Story,  Conti.  Laws,  §  607  ;  Alivon  v. 
Furnival,  1  Cromp.  Mees.  &  Rose.  277. 

1  [  *  Story,    Confi.  Laws,  Redf.  edit., 
§§  618  a  -  618  Ic. 

•^  Scott  V.  Pilkington,  2  B.  &  S.  11 ;  8 
Jur.  N.  s.  557. 


CHAT,  v.]  RECORDS  'aND   JUDICIAL   WRITINGS.  583 

casc.i  111  the  case  of  Scott  v.  rUkinjtun,  it  was  determined,  that 
where  the  defendant,  domiciled  in  England,  and  having  his  place 
of  business  there,  gave  a  letter  of  credit  to  parties  in  New  York, 
authorizing  them  to  draw  bills  of  exchange,  on  his  house  in  Liver- 
pool, such  letter  being  delivered  to  the  defendant  in  New  York, 
and  intended  to  be  exhibited  to  purchasers  of  such  bills  as  author- 
ity for  drawing  the  same,  the  claim  of  a  drawer  of  such  bills  upon 
tlie  defendant  for  non-acceptance  of  the  same  was  a  contract  sub- 
ject to  the  law  of  New  York,  as  to  its  validity,  force,  and  con- 
struction, and  not  to  be  judged  of  by  the  law  of  England  in  any 
respect.  And  when  in  such  case  an  action  had  been  brought  in 
the  courts  of  New  York,  and  the  defendant  appearing  by  attorney, 

■  it  had  been  adjudged,  that,  by  the  law  of  that  state,  the  defendant 
Avas  liable,  and  judgment  had  been  rendered  thereon  against  him, 
such  judgment  was  conclusive  as  to  the  matter,  although,  if  the 
contract  had  been  sul)ject  to  the  English  law,  and  the  New- York* 
court  had  mistaken  it,  the  judgment  Avould  not  have  concluded  an 
English  court.  The  case  of  Crisjjin  v.  Daglioni  involved  the  right 
of  succession  to  personal  estate  in  Portugal  by  one  domiciled  in 
that  country,  and  the  matter  having  been  definitely  settled  by  the 
decision  of  the  highest  judicial  tribunal  of  that  country,  it  was 
held  conclusive  everywhere. 

y  §  546e.  But  it  was  said  in  Scott  v.  PilUngton,  that'where  the  for- 
eign court,  in  giving  judgment,  and  as  one  of  the  elements  upon 
which  the  same  was  based,  assumed  or  decided  a  question  of  Eng- 
lish law,  by  which  the  cause  of  action  was  ruled,  and,  in  doing  so, 
mistook  its  true  import,  in  such  case  the  judgment  of  the  foreign 

V  courts  will  be  of  no  force  or  validity  in  an  English  court.^  In  the 
case  of  Simpson  v.  Fo(^o,  the  effect  of  foreign  judgments  is  very 
extensively  discussed ;  and  the  following  propositions  declared, 
which  may  be  regarded  as  embracing  the  present  recognized  prin- 
ciples of  English  law  upon  the  question. 

§  546ti  A  judgment  of  a  foreign  court  is  conclusive,  inter 
partes,  where  there  is  nothing  on  the  face  of  the  judgment  which 
an  English  court  can  inquire  into.  But  the  courts  of  England 
may  disregard  such  judgment,  inter  partes,  if  it  appears  on  the 
record  to  be  manifestly  contrary  to  natural  justice  ;  or  to  be  based 
on  domestic  legislation  not  recognized  in  England  or  other  foreign 

1  Crispin  v.  "Dajilioni,  9  Jur.  x.  s.  653.      8  Jur.  N.  s.  557  ;  Simpson  v.  Fogo,  9  Jur. 
-  Scott  V.  Pilkington,  2  B.  &  S.  11;     n.  8.403. 


> 


58-1  LAW   OF   EVIDENCE.  [PART  III. 

countries ;  or  is  foiindcJ  upon  a  misapprehension  of  what  is  the 
law  of  England  ;  or  if  such  judgment  proceeds  upon  a  distinct 
refusal  to  recognize  the  laws  of  the  country  under  which  the  title 
to  the  subject-matter  of  the  litigation  arose.  And  a  somewhat 
similar  enunciation  of  the  exceptions  to  the  conclusiveness  of  for- 
eign judgments  is  found  in  The  Bank  of  Australasia  v.  Nias} 
.  §  5-166'.  There  are  some  cases  where  foreign  decrees  have  been 

A        held  to  operate  in  rem,  and  thus  to  transfer  an  effectual  and  abso- 
^,  '  lute  title  to  property  sold  under  an  order  or  execution  from  the 
foreign  courts ;  but  where,  in  other  cases,  very  similarly  situated, 
it  has   been    held   that   only  the   title    of   the   judgment-debtor 
passed  under  the  sale.     The  true  distinction  in  this  class  of  cases 
seems   to  be,  that  where  the    court   assumes   to    allow  adverse 
claimants  to  interpose  objections  to  the   sale,  and  to  determine 
the  validity  of  sucK  claims,  and  to  pass  a  perfect  title  to  the 
C^-^  thing  sold,  it  must  be  taken  as  a  proceeding  in  rem,  and  as  having 
|.  ^    effectually  foreclosed  all  claim  of  title  from  any  party  who  did  in 
rri       fact  submit  his  claim  to  adjudication  before  the  court,  or  who 
had  his  domicil  at  the  time  within  the  jurisdiction  of  the  court, 
and  who  might  therefore  have  been  heard  there,  provided  proper 
notice  appears.^ 

§  546/.  And  it  will  not  exonerate  the  defendant  in  a  foreign 
judgment,  that  he  became  a  party  to  the  proceedings  merely  to 
prevent  his  property  being  seized,  and  that  the  judgment  is  erro- 
neous in  fact  and  in  law  on  the  merits  ;  whether  the  plea  alleges, 
that  the  error  does  or  does  not  appear  upon  the  face  of  the  judg- 
ment. Nor  can  the  defendant  plead,  that  the  enforcement  of 
the  judgment  in  England  is  contrary  to  natural  justice,  on  the 
ground  that  the  defendant  had  discovered  fresh  evidence,  showing 
that  the  judgment  is  erroneous  in  fact  or  in  law  upon  the  merits, 
or  that  evidence  was  improperly  admitted.^ 

§  540//.  But  a  plea  in  bar  of  a  suit,  that  the  same  matter  has 
been  adjudged  between  the  parties  in  a  foreign  court,  must  show 
that  the  judgment  is  final  and  conclusive  between  the  parties, 
according  to  the  law  of  the  place  where  such  judgment  is  pro- 
nounced.*    And  the  judgment  of  the  foreign  court  may  always 

1  IG  Q.  B.  717 ;  4  Eng.  L.  &  Eq.  Rep.  »  p^  Cossc  Brissac  v.  Rathbone,  6  H.  .& 
252.  Nor.  301. 

2  Imrie  v.  Castrique,  8  C.  B.  n.  s.  406,         *  Frayes  v.  Worms,  10  C.  B.  n.  s.  149. 
7  Jur.  N.  s.  1070  ;  SiinpsDii  v.  P^o<io,  supra; 
Woodruff  V.  Taylor,  20  Vt.  R.  65. 


7.^ 


CHAP,  v.]  RECORDS   AND   JUDICIAL   WRITINGS.  585 

be  impeached  by  showing  any  facts  whereby  it  is  made  to  ajjpear 
that  the  court  had  not  jurisdiction  by  the  laws  of  the  country 
where  rendered.  But  no  facts  can  be  shown,  by  way  of  defence 
to  such  judgnicnt,  which  might  have  been  urged  in  the  foreign 
court.  ^. 

§  o4G7i.  These  cases,  mostly  of  recent  occurrence,  have  carried 
the   doctrine    of  the   conclusive  force  of  foreign  judgments  con- 
sidera1)Iy  beyond  the  point  maintained  by  the  earlier  cases,  and 
even  so  late  as  Avithin  the  last  thirty  years,  when  it  was  held, 
by  the  courts  in  Westminster  Hall,  that  such  judgments  were 
merely  prima  facie  evidence  of  debt,  and  did  not  0})eratc  as  an 
absolute  and  conclusive  merger  of  the  cause  of  action.^      But  it 
was  formally  held,  by  the   common  consent  of  counsel,  in  the 
House  of  Lords,  as  early  as  1845,  that  a  judgment  of  the  highest 
judicial  tribunal  of  France,  upon  the  same  subject-matter,  in  favor 
of  the   present  defendant,  amounted   to   res  judicata,   and  was 
therefore  an  effectual  merger  of  the  cause  of  action,  "  the  foreign 
tribunal  having  jurisdiction  over  the  matter,  and  both  the  parties 
having  been  regularly  brought  before  "  it.^     So  that  now  it  may  be 
regarded  as  fully  established  in  England,  that  the  contract  result- 
ing from  a  foreign  judgment  is  equally  conclusive,  in  its  force  and 
.  V    ^     operation,  with  that  implied  by  any  domestic  judgment.  ' 
'^     ^    )     §  546i.  But  there  is  still  a  very  essential  and  important  dis- 
tinction between  the  two.      Domestic  judgments  rest  upon   the 
conclusive  force  of  the  record,  which  is  absolutely  unimpeachable. 
Foreign  judgments  arc  mere  matters  en  i^ais,  to  be  proved  the 
same  as  an  arbitration  and  award,  or  an  account  stated ;  to  be 
"^  established,  as  matter  of  fact,  before  the  jury ;  and  by  consequence 
\  Xt  v!     sulject   to   any  contradiction   or   impeachment  which   might   be 
I  j-^    urged  against  any  other  matter  resting  upon  oral  proof.     Hence 
[  "^  ^^  any  fraud  which  entered  into  the  concoction  of  the  judgment  itself 
is  proper  to  be  adduced,  as  an  answer  to  the  same ;  but  no  fraud 
<  ,  which  occurred,  and  was  known  to  the  opposite  party,  before  the 

i  ^^       (rendition  of  such  foreign  jiulgment,  and  which  might  therefore 
hk      jhave  been  brought  to  the  notice  of  the  foreign  court,  can  be  urged 
lin  defence  of  it. 

§  54(>A'.  It  is  proper  to  add,  that  while  the  English  courts  thus 

1  Vanquelin  c.  Bouard,  9  L.  T.  x.  s.  ■  Story,  Confl.  of  Laws,  §  599;  Smith 

682.  V.  NicoUs,  5  Eingr.  y.  c.  1208. 

3  Kicardo  i;.  Garcias,  12  CI.  &  Fin.  368. 


^^   58G 


LAW    OF   EVIDENCE. 


[PAET    III. 


recognize  the  general  force  and  validity  of  foreign  judgments,  it 
has  been  done  under  such  limitations  and  qualifications,  that 
j  great  latitude  still  remains  for  breaking  the  force  of,  and  virtually 
disregarding  such  foreign  judgments  as  proceed  upon  an  obvious 
misapprehension  of  the  principles  governing  the  case ;  or  where 
they  are  produced  by  partiality,  or  favoritism,  or  corruption,  or 
where  upon  their  face  they  appear  to  be  at  variance  with  the 
instinctive  principles  of  universal  justice.^  But  these  are  the  rare 
exceptions.] 

§  547.  "  The  general  doctrine  maintained  in  the  American  courts , 
in  relation  to  forci'gn  judgments  in  i^ersonam,  certainly  is,  that 
they  arc  i^rimd  facie  evidence ;  but  that  they  are  impeachable. 
But  how  far,  and  to  what  extent,  this  doctrine  is  to  be  carried, 
does  not  seem  to  be  definitely  settled.  It  has  been  declared  that 
the  jurisdiction  of  the  court,  and  its  power  over  the  parties  and  the 
things  in  controversy,  may  be  inquired  into ;  and  that  the  judg- 
ment may  be  impeached  for  fraud.  Beyond  this,  no  definite  lines 
have  as  yet  been  drawn."  ^ 

§  548.  We  have  already  adverted  to  the  provisions  of  the  con- 
stitution and  statutes  of  the  United  States,  in  regard  to  the  admis- 
sibility and  effect  of  the  judgments  of  one  state  in  the  tribunals 
of  another.^  By  these  provisions,  such  judgments  authenticated 
as  the  statutes  provide,  are  put  upon  the  same  footing  as  domestic 
judgments.'*  "  But  this,"  observes  Mr.  Justice  Story,  "  does  not 
prevent  an  inquiry  into  the  jurisdiction  of  the  court,  in  which  the 
original  judgment  was  rendered,  to  pronounce  the  judgment,  nor 
an  inquiry  into  the  right  of  the  state  to  exercise  authority  over 
the  parties,  or  the  subject-matter,  nor  an  inquiry  whether  the 
judgment  is  founded  in,  and  impeachable  for,  a  manifest  fraud. 


1  2  Story,  Eq.  Jur.  §§  1575-1584,  and 
cases  cited ;  Boston  India  Rubber  Fac- 
tory V.  Hoit,  14  Vt.  R.  U2.] 

2  Story,  Confl.  Laws,  §  G08.  See  also 
2  Kent,  C'omni.  ll'J-121 ;  and  tbe  valuable 
notes  of  Mr.  INIetcalf  to  his  edition  of 
Starkie  on  Evid.  vol.  1,  pp.  232,  233  (6th 
Am.  edit.)  ;  Wood  v.  Watkinson,  17  Conn. 
500.  Tlie  American  cases  seem  further 
to  agree,  that  when  a  foreign  judgment 
comes  Incitlcntiilli/  in  question,  as,  where  it 
is  tlie  foundation  of  a  right  or  title  derived 
under  it,  and  the  like,  it  is  conclusive.  If 
a  foreign  judgment  jjroceeds  upon  an 
error  in  law,  ai)parent  upon  the  face  of  it, 
it  may  be  unpeaclied  everywhere;  as,  if  a 


French  court,  professing  to  decide  accord- 
ing to  the  law  of  England,  clearly  mis- 
takes it.  Novell!  V.  Rossi,  2  B.  &  Ad. 
757. 

3  Snpm,  §§  504,  505,  506.  And  see 
Flourenoy  v.'  burke,  2  Brev.  206. 

^  Taylor  v.  Bryden,  8  Jolms.  173. 
Where  the  jurisdiction  of  an  inferior  court 
depends  on  a  fact,  which  such  court  must 
necessarily  and  directly  decide,  its  deci- 
sion is  taken  as  conclusive  evidence  of  the 
fiict.  Britain  v.  Kinnaird,  1  B.  &  B.  432 ; 
Betts  V.  Bagley,  12  Pick.  572,  582,  per 
Shaw,  C.  J. ;  Steele  v.  Smith,  7  Law  Rep. 
461. 


CHAP,  v.] 


RECORDS    AND    JUDICIAL    WRITINGS. 


587 


The  constitution  did  not  mean  to  confer  any  new  power  upon  the 
states ;  but  simply  to  rcgukxte  the  effect  of  their  acknowledged 
jurisdiction  over  persons  and  things  within  their  territory.  It 
did  not  make  the  judgments  of  other  states  domestic  judgments, 
to  all  intents  and  purposes ;  but  only  gave  a  general  validity, 
faith,  and  credit  to  them  as  evidence.^  No  execution  can  issue 
upon  such  judgments,  without  a  new  suit  in  the  tribunals  of  other 
states.  And  they  enjoy  not  the  right  of  priority,  or  privilege,  or 
lien,  which  they  have  in  the  state  where  they  are  pronounced, 
Ijut  that  only  which  the  lex  fori  gives  to  them  by  its  own  laws,  in 
the  character  of  foreign  judgments."  ^ 

[  *  §  548a.  We  had  occasion  to  consider  a  very  peculiar  question, 
arising  under  the  United  "States  constitution  and  the  act  of  con- 
gress, as  to  the,  effect  of  the  judgment  of  a  court  in  one  state  for 
\j\;     the  penalty  of  a  bond,  intended  to  secure  the  payment  of  a  debt 
^  by  instalments,  where  all  the  instalments  were  not  due  at  the  time 

y  of  the  judgment,  and  where  the  enforcement  of  the  interlocutory 

^v        judgment  for  the  penalty  was  attempted  in  another  state,  in  order 
C^to  compel  the  payment  of  the  instalments  falling  due  after  the 
^        rendition  of  the  interlocutory  judgment.^     The  conclusion  reached 
^^^  was,  that,  as  the  judgment  was  merely  interlocutory  and  did  not 
s^    'Si    create  any  absolute  indebtedness,  no  action  of  debt  could  be  main- 
^  ^js^  tained  upon  it ;  and  that,  as  it  was  not  a  proper  or  perfected  judg- 
^         ment,  it  could  not  have  the  same  effect  in  any  other  state  as  in 
%.     that  where  rendered,  and  could  not  therefore  be  enforced,  either 
under  the  laws  of  congress,  or  upon  general  principles,  as  at  com- 
mon law.] 

§  549.  The  common  law  recognizes  no  distinction  whatever,  as 
(^        to  the   effect  of  foreign  judgments,  whether   they  are   between 
V         citizens,  or  between  foreigners,  or  between  citizens  and  foreigners ; 
,    \        deeming  them  of  equal  obligation  in  all  cases,  whoever  are  the 
)Y        parties.* 


1  See  Storv's  Comment,  on  the  Con- 
gtit.  U.  S.  ch.  2'.i,  §  12'.)7-1307,  and  cases 
there  cited  ;  Hall  v.  "Williams,  6  Pick.  i'-Vi  ; 
]?issell  V.  Eriijiis,  'J  Mass.  4G2;  Shumway 
V.  8tillman,  li  Wend.  447  ;  Evans  v.  Tarlc- 
ton,  9  Serg.  &  K.  2G0 ;  Benton  v.  Burgot, 
10  Serg.  &  11.  240 ;  Hancock  v.  Barrett,  1 
Hall,  155;  s.  c.  2  Hall,  802;  Wilson  v. 
Kiles,  2  Hall,  358;  Hoxie  r.  Wright,  2 
Verm.  2Go  ;  Bellows  v.  Ingraham,  2  Verm. 
57o  ;   Aldrich  v.   Ivinnoy,   4  Conn.  380 ; 


Bennett  v.  Morley,  1  "Wilcox,  100.  See 
further,  1  Kent,  Comm.  2tJ0,  201,  and  note 
(d).  As  to  the  eflect  of  a  discharge  under 
a  foreign  insolvent  law,  see  the  learned 
iudgment  of  Shaw,  C.  J.,  in  Betts  v.  Bag- 
ley,  12  IMck.  572. 

-  Story,  Confl.  Laws,  §  GOO;  McEI- 
moyle  v.  Cohen,  13  Peters,  312,  328,  329; 
Story,  Contl.  Laws,  S  582  a.  note. 

8'[*I)imickc.Brooks,2l  Vt.  K.  569.] 

*  Story,  Couli.  Laws,  §  010. 


588  LAW   OF   EVIDENCE.  [PAET   III. 

•  §  550.  In  regard  to  the  decrees  and  sentences  of  courts,  exer- 
eisinf>-  any  branches  of  the  ecclesiastical  jurisdiction,  the  same 
general  principles  govern,  which  we  have  already  stated.^  The 
principal  branch  of  this  jurisdiction,  in  existence  in  the  United 
States,  is  that  which  relates  to  matters  of  probate  and  administra- 
tion. And  as  to  these,  the  inquiry,  as  in  other  cases,  is,  whether 
the  matter  was  exclusively  Avithin  the  jurisdiction  of  the  court, 
and  whether  a  decree  or  judgment  has  been  passed  directly  upon  it. 
If  the  affirmative  be  true,  the  decree  is  conclusive.  Where  the 
decree  is  of  the  luiture  of  proceedings  in  rem,  as  is  generally  the 
case  in  matters  of  probate  and  administration,  it  is  conclusive,  like 
those  proceedings,  against  all  the  w^orld.  But  where  it  is  a  matter 
of  exclusively  private  litigation,  such  as,  in  assignments  of  dower, 
and  some  other  cases  of  jurisdiction  conferred  by  particular  stat- 
utes, the  decree  stands  upon  the  footing  of  a  judgment  at  common 
law.2  .  Thus,  the  probate  of  a  will  at  least  as  to  the  personalty  is 
conclusive  in  civil  cases,  in  all  questions  upon  its  execution  and 
validity .3  The  grant  of  letters  of  administration  is,  in  general, 
primd  facie  evidence  of  the  intestate's  death ;  for  only  upon  evi- 
dence of  that  fact  ought  they  to  have  been  granted.*  And  if  the 
grant  of  administration  turned  upon  the  question  as  to  which 
of  the  parties  was  next  of  kin,  the  sentence  or  decree  upon  that 
question  is  conclusive  everywhere,  in  a  suit  between  the  same 
parties  for  distribution.^  But  the  grant  of  administration  upon 
a  woman's  estate  determines  nothing  as  to  the  fact  whether  she 
were  a  feme  covert  or  not ;  for  that  is  a  collateral  fact,  to  be  col- 
lected merely  by  inference  from  the  decree  or  grant  of  administra- 
tion, and  was  not  the  point  directly  tried.^     Where  a  covirt  of 

1  2  Smith's  Leading  Casej,  446-448.         But  if  tlie  fact,  that  the  intestate  is  living, 

2  Snfiru,  §§  .52.5,  528.  when   pleadable   in   abatement  is  not  so 
^  Poplin  V.  Ilawke,  8  N.  Hamp.  124 ;  1     pleaded,    the   grant   of  administrati,on   is 

Jarman  on  Wills,  pp.  22,  23,  24,  and  notes  conclusive.     Newman  v.  Jenkins,  10  Pick, 

by  Perkins  ;  Langdon  v.  Goddard,  3  Story,  515.     In  Moons  v.  De  Bernales,  1  Kuss. 

11. 1.     See  pout,  vol.  2,  (7th  edit.)  §§  315,  301,  the  general  practice  was  stated  and 

[673,]  6'J3.     [A  decree  of  a  probate  court  not  denied  to  be,  to  admit  the  letters  of 

of  another  state,  aihnitting  to  jjrobate  a  administration,  as  sufficient  proof  of  the 

will  within  its  jurisdiction,  is  conclusive  death,  until  impeached  ;  but  the  master  of 

evidence,  if  duly  authenticated,  of  the  va-  the  rolls,  in  that  case,  which  was  a  for- 

lidity  of  the  will,  upon  an  application  to  eign  grant  of  administration,  refused  to 

prove  it  in  Massachusetts ;  even  when  no  receive  them ;    but  allowed  the  party  to 

notice  of  the  offer  of  the  will  for  probate  examine  witnesses  to  the  fact, 

was  given,  if  by  the  law  of  that  state  no  ^  Barrs  *'.  Jackson,  1  Phil.  Ch.  R.  582 ; 

notice  was  required.     Creppen  v.  De.xter,  2  Y.  &  C.  585 ;   Thomas  v.  Ketteriche,  1 

13  Grav,  330.]  Vez.  333. 

•*  Tiiompson  v.  Donaldson,  3  Esp.  63 ;  ^  Blackham's  case,   1    Salk.  290,   per 

French  *•.  French,  1   Dick.  2G8 ;  Succes-  Holt,  C.  J.     See  also  Hibsham  f.  DuUe- 

sion  of  Hamblin,   3   Rob.  Louis.  K.  130;  ban,  4  Watts,  183. 
Jeffers  v.  Kadclilf,  10  N.  Hamp.  R.  242. 


CHAP,  v.]  RECORDS    AND   JUDICIAL   WRITINGS.  589 

probate  lias  power  to  grant  letters  of  guardiaiislup  of  a  lunatic, 
the  grant  is  conclusive  of  his  insanity  at  that  time,  and  of  his 
liability,  therefore,  to  be  put  under  guardianship,  against  all  per- 
sons sul)scquently  dealing  directly  with  the  lunatic,  instead  of 
dealing,  as  they  ought  to  do,  with  the  guardian.^ 

§  551.  Decrees  in  chancery  stand  upon  the  same  principles  with 
judgments  at  common  law,  which  have  already  been  stated. 
AVhethcr  the  statements  in  the  hill  are  to  be  taken  conclusively 
against  the  complainant  as  admissions  l)y  him,  has  been  doubted  ; 
l)ut  the  prevailing  oi)inion  is  supi)Oscd  to  be  against  their  con- 
clusiveness, on  the  ground  that  the  facts  therein  stated  are  fre- 
quently the  mere  suggestions  of  counsel,  made  for  the  purpose 
of  obtaining  an  answer,  under  oath.^  *  If  the  bill  has  been  sworn 
to,  without  doubt  the  party  would  be  held  bound  by  its  statements, 
so  far  as  they  are  direct  allegations  of  fact.  The  admissibility 
and  effect  of  the  answer  of  the  defendant  is  governed  by  the-  same 
rulcs.^  But  a  demurrer  in  chancery  does  not  admit  the  facts 
charged  in  the  bill;  for^if  it  be  overruled,  the  defendant  may  still 
answer.  So  it  is,  as  to  pleas  in  chancery;  these,  as  well  as  de- 
murrers, being  merely  hypothetical  statements,  that,  supposing 
the  facts  to  be  as  alleged,  the  defendant  is  not  bound  to  answer.* 
But  pleadings,  and  depositions,  and  a  decree,  in  a  former  suit, 
the  same  title  Ijcing  in  issue,  are  admissible  as  showing  the  acts 
of  parties,  who  had  the  same  interest  in  it  Us  "the  present  party, 
against  whom  they  are  offered.^ 

§  552.  In  regard  to  depositions,  it  is  to  be  observed,  that,  though 
informally  taken,  yet  as  mere  declarations  of  the  witness,  under 
his  hand,  they  are  admissible  against  him,  wherever  he  is  a  party, 
like  any  other  admissions ;  or,  to  contradict  and  impeach  him, 
when  he  is  afterwards  examined  as  a  witness.     But,  as  secondary 

1  Leonard  v.  Leonard,  14   Pick.  280.  whose  name  the  bill  was  filed.    Boileau  v. 

But  it  is  not  conclusive  a;j;ainst  his  subse-  l-!udlin,  lli  Jur.  8W  ;  '1  E.xch.  (365.     And 

quent  cajiacity  to  make  a  will.     Stone  v.  see   Bunden    v.   Cleveland,   4   Ala.   225 ; 

Damon,  12  Mass.  488.  Bull.  N.  P.  2o5.     See  further,  as  to  the 

-  Doe  ('.  Sybourn,  7  T.  R.  3.     The  bill  admission   of  bills   and   answers,  and   to 

is  not  evidence  against  the  party  in  whose  what    extent,    Randall    v.   Parramore,    1 

name  it  is  filed,  until  it  is  shown  that  he  ('ranch,  405) ;  Roberts  v.  Tennell,  3  Jlonr. 

was  privy  to  it.      Wlien   this   privity  is  247  ;  Clarke  v.  Robinson,  5  B.  Monr.  55; 

established,  the  bill  is  evidence  that  such  Adams  v.  McMillan,  7  Port.  73. 
a  suit  was  instituted,  and  of  its  subject-  "  Sii/ir<i,  §§  171,  17'J,  IbG,  202. 

matter ;    but  not  of  the  i)laintitl  "s  adniis-  *  Tompkins  v.  Ashby,  1  M.   &  Malk. 

sion  of  the  truth  of  the  matters  tlierein  32,  33.  per  Abbott,  Ld.  C.  J. 
stated,  unless  it  were  sworn  to.     Tlie  pro-  »  Viscount  Lorton  v.  Earl  of  Kingston^ 

ceedings  after  answer  are  admissible   in  5  Clark  &  Fin.  269. 
evidence   of  the  privity  of  the  part}'  in 

VOL.  I.  50 


590  LAW    OF    EVIDENCE.  [PART   III. 

evidence,  or  as  a  substitute  for  his  testimony  vivd  voce,  it  is  essen- 
tial that  they  be  regularly  taken,  under  legal  proceedings  duly 
pending,  or  in  a  case  and  manner  provided  by  law.^  And  though 
taken  in  a  foreign  state,  yet  if  taken  to  be  used  in  a  suit  pending 
here,  the  forms  of  our  law,  and  not  of  tiic  foreign  law,  must  be 
pursued.^  But  if  the  deposition  was  taken  \\\ ijerpetuam,  the  forms 
of  the  law  under  which  it  was  taken  must  have  been  strictly  pur- 
sued, or  it  cannot  be  read  in  evidence.^  If  a  bill  in  equity  be 
dismissed  merely  as  being  in  its  substance  unfit  for  a  decree,  the 
depositions,  when  offered  as  secondary  evidence  in  another  suit, 
will  not  on  that  account  be  rejected.  But  if  it  is  dismissed  for 
irregularity,  as,  if  it  coniQ  before  the  court  by  a  bill  of  revivor, 
when  it  should  have  been  by  an  original  bill;  so  that  in  truth 
there  was  never  regularly  any  such  cause  in  the  court,  and  con- 
sequently no  proofs,  the  depositions  cannot  be  read ;  for  the  proofs 
cannot  be  exemplified  without  bill  and  answer,  and  they  cannot 
be  read  at  law,  unless  the  bill  on  which  tjiey  were  taken  can  be 
read.* 

§  553.  We  have  seen,  that  in  regard  to  the  admissibility  of  a 
former  judgment  in  evidence  it  is  generally  necessary  that  there 
be  a  perfect  mutuality  between  the  parties ;  neither  being  con- 
cluded, unless  both  are  alike  bound.^  But  with  respect  to  depo- 
sitio)is,  though  this  rule  is  admitted  in  its  general  principle,  yet  it 

1  As  to  the  manner  of  taking  deposi-  to  the  same  extent,  to  depositions  taken 
tions,  and  in  what  cases  they  may  be  in  cliancery  is,  that  otherwise  great  mis- 
taken, see  supra,  §§  320-325.  [The  an-  chief  would  ensue  ;■  "  for  tlien  a  man,  tliat 
swers  of  a  party  to  a  suit,  to  interrogato-  never  was  party  to  tlie  chancery  proceed- 
ries  filed  in  a  case,  are  competent  evi-  ings,  might  use  against  his  adversary  all 
dence  against  him,  as  admissions  on  his  the  depositions  tiiat  made  against  him  ; 
part  of  the  facts  stated  therein  in  another  and  he,  in  his  own  advantage,  could  not 
buit,  although  the  issues  in  the  two  suits  u«e  the  depositions  that  made  for  him, 
he  ditierent.  Williams  v.  Cheney,  3  Gray,  because  the  other  party,  not  being  con- 
215,  220. 1  cerned  in  the  suit,  had  not  the  liberty  to 

-  Evans  v.  Eaton,  7  Wheat.  426 ;  Far-  cross-examine,   and   therefore   cannot    be 

ley  V.  King,  iS.  J.  Court,  Maine,  in  Lin-  encountered  with  any  depositions,  out  of 

co'ln,  Oct.  Term,  1822,  per  Preble,  J.    But  the  cause."    1  Gilb.  l<]vid.  (■)2  ;  Kushworth 

depositions   taken   in  a  foreign   country,  v.  Countess  of  Pembroke,  llardr.  472.   But 

mider  its  own  laws,  are  admissible  here  the  exception  allowed  in  the  text  is  clearly 

in  pnjof  of  probable  cause,  for  the  arrest  not  within  this  mischief,  the  right  of  cross- 

and  e.xtraditi(m  of  a  fugitive  from  justice,  examination   being   unlimited,   as   to  the 

upon   the  ])reliminary  examination  of  his  matters  in  question.     [*  In  a  recent  case 

case  beibre  a  judge.     See  Metzger's  case,  in  the  King's  Bench,  it  was  held  by  two  of 

before  Belts,  J.,  5  X.Y.  Legal  (Jbs.  83.  the  judges,  one  dissenting,  that  where  a 

*  (iould  V.  Gould,  3  Story,  K.  51G.  party  makes  use  of  the  depositions  of  wit- 

■*  Backhouse  v.  Middleton,  1  Ch.  Gas.  nesses   in   a   suit  with  another  party,  in 

173,  175 ;  Hall  v.  Hoddesdim,  2  P.  Wms.  regard  to  the  same  subject-matter,  that  he 

102;    Vaughan  v.   Pitzgerald,    1    Sch.  &  by  thus  making  use  of  the  deposition  as 

Lefr.  316.  true,  knowing  its  contents,  so  far  affirms 

■'  Supra,  §  524.     The  reason  given  by  its  truth,  that  it  may  be  used  as  original 

Chief  Baron  Gilbert,  for  applying  the  rule,  evidence  against  him.      Cockburn,   C.  J., 


CHAP,  v.]  RECORDS   AND   JUDICIAL   WRITINGS.  591 

is  applied  with  more  latitude  of  discretion ;  and  complete  mutu- 
ality, or  identity  of  all  the  parties,  is  not  required.*  It  is  generally 
deemed  sufficient,  if  the  matters  in  issue  were  the  same  in  both 
cases,  and  the  party,  against  whom  the  deposition  is  offered,  had 
full  power  to  cross-examine  the  witness.  Thus,  where  a  bill  was 
jicndiug  in  chancery,  in  favor  of  one  plaintiff  against  several  de- 
fendants, upon  which  the  court  ordered  an  issue  of  devisavit  vel 
non,  in  whicli  the  defendants  in  chancery  should  be  plaintiffs,  and 
the  plaintiff  in  chancery  defendant ;  and  the  issue  was  found  for 
the  plaintitBi ;  after  which  the  plaintiff  in  chancery  brought  an 
ejectment  on  his  own  demise,  claiming  as  heir  at  law  of  the  same 
testator,  against  one  of  those  defendants  alone,  who  claimed  as 
devisee  under  the  will  formerly  in  controversy ;  it  was  held,  that 
the  testimony  of  one  of  the  subscribing  witnesses  to  the  will,  who 
was  examined  at  the  former  trial,  but  had  since  died,  might  be 
proved  by  the  defendant  in  the  second  action,  notwithstanding  the 
l)arties  were  not  all  the  same ;  for  the  same  matter  was  in  con- 
troversy, in  both  cases,  and  the  lessor  of  the  plaintiff  had  precisely 
the  same  power  of  objecting  to  the  competency  of  the  witness*,  the 
same  right  of  calling  witnesses  to  discredit  or  contradict  his  testi- 
mony, and  the  same  right  of  cross-examination,  in  the  one  case,  as 
in  the  other.^  If  t^e  power  of  cross-examination  was  more  limited 
in  the  former  suit,  in  regard  to  the  matters  in  controversy  in  the 
latter,  it  would  seem  that  the  testimony  ought  to  be  excluded. ^ 
The  same  rule  applies  to  privies,  as  well  as  to  parties. 

§  554.  But  though  the  general  rule,  at  law,  is,  that  no  evidence 
|shall  be  admitted,  but  what  is  or  might  he  under  the  examination 
\of  both  parties  ;  ^  yet  it  seems  clear,  that,  in  equity,  a  deposition  is 
mot,  of  course,  inadmissible,  in  evidence,  because  there  has  been  no 
\cross-examination,  and  no  waiver  of  the  right.  For  if  the  witness, 
after  his  examination  on  the  direct  interrogatories,  should  refuse 

said,  "  A  man  wlio  brin,!:cs  forward  anotlier,  deposition  of  a  witness  before  the  coroner, 

for  the  pnrpose  of  asserting  or  proving  upon  an  inquiry  touching  the  death  of  a 

some  fact  on  his  behalf,  whetlier  in  a  court  person  killed  by  a  collision  of  vessels,  was 

of  justice   or  otherwise,  must   be   taken  admissible  in  an  action  for  the  negligent 

himself  to  assert  the  fact  which   he  thus  management  of  one  of  them,  if  the  witness 

seeks  to  establish."     Richards  v.  Morgan,  is  shown  to  be  beyond  sea.   Sills  v.  Brown, 

10  Jur.  N.  s.  550.1  9  C.   &  P.  001, '603,  per  Coleridge.  J.; 

1  Wright  V.  Tatham,  1  Ad.  &  El.  3 ;  Bull.  N.  P.  242;  Rex  v.  Eriswell,  3  T.  R. 

12   Vin.  Abr.  tit.  Evidence,  A.  b.  31,  pi.  707,  712,  721 ;  J.  Kely,  55. 

45,  47.    As  to  the  jiersons  who  are  to  be  ^  Cazenove  v.  Vaughan,  1  M.  &  S.  4, 

deemed  parties,  see  supra,  §§  523,  535.  6  ;  Attor.-Gen.  v.  Davison,  1  McCl.  &  Y. 

^  Hardr.  315 ;  Cazenove  v.   Vaughan,  IGO ;   Gass  v.  Stinson,  3   Sumn.  98,  104, 

1  M.  &  S.  4.     It  has  been  held  that  the  105. 


,V.I2  LAW   OF   EVIDENCE.  [PART  III. 

to  answer  tlie  cross-interrogatories,  the  party  producing  the  witness 
will  not  be  deprived  of  his. direct  testimony,  for,  upon  application 
of  the  other  party,  the  court  would  have  compelled  him  to  answer.^ 
So,  after  a  witness  was  examined  for  the  plaintiff,  but  before  he 
could  be  cross-examined,  he  died  ;  the  court  ordered  his  deposition 
to  stand ;  ^  though  the  want  of  the  cross-examination  ought  to 
aliate  the  force  of  his  testimony .^  .  So,  where  the  direct  examina- 
tion of  an  infirm  witness  was  taken  by  the  consent  of  parties,  but 
no  cross-interrogatories  were  ever  filed,  though  the  witness  lived 
several  months  afterwards,  and  there  Avas  no  proof  that  they  might 
not  have  been  answered,  if  they  had  been  filed ;  it  was  held  that 
the  omission  to  file  them  was  at  the  peril  of  the  party,  and  that  the 
de})Osition  was  admissible.^  A  new  commission  may  be  granted, 
to  cross-examine  the  plaintiff's  witnesses  abroad,  upon  subsequent 
I  discovery  of  matter  for  such  examination.^  But  where  the  deposi- 
'  tion  of  a  witness,  since  deceased,  was  taken,  and  the  direct  exami- 
nation was  duly  signed  by  the  magistrate,  but  the  cross-examination, 
which  was  taken  on  a  subsequent  day,  was  not  signed,  the  whole 
was  held  inadmissible.^ 

§  555.  Dejyositioiis,  as  well  as  verdicts,  which  relate  to  a  custom, 
or  prescription,  or  pedigree,  where  reputation  would  be  evidence, 
aFe  admissible  against  strangers  ;  for  as  the  dechirations  of  persons 
deceased  would  be  admissible  in  such  cases,  a  fortiori  their  dec- 
larations on  oath  are  so."  But  in  all  cases  at  law,  where  a  deposi- 
tion is  offered  as  secondary  evidence,  that  is,  as  a  substitute  for 
the  testimony  of  the  witness  vivd  voce,  it  must  appear  that  the 
witness  cannot  be  personally  produced  ;  unless  the  case  is  provided 
for  by  statute,  or  by  a  rule  of  the  court.^ 

§  556.  The  last  subject  of  inquiry  under  this  head  is  that  of 
inquisitions.  These  are  the  results  of  inquiries,  made  under  com- 
petent public  autliority,  to  ascertain  matters  of  public  interest  and 
concern.  It  is  said  that  they  are  analogous  to  proceedings  in  rem, 
]>eing  made  on  behalf  of  the  public  ;  and  that  therefore  no  one  can 
strictly  be  said  to  be  a  stranger  to  them.     But  the  principle  of 

'  Courtney  v.  Iloskins,  2  Russ.  253.  °  King  of   Hanover    v.  Wheatley,    4 

2  Arundel  i:  Arundel,  1  Clian.  R.  90.  Beav.  78. 

8  O'Callaglian  v.   Murpliy,   2   Soh.  &  <*  j^egina  v.  France,  2  M.  &  Kob.  207. 

Lef.   1.58;  Gass  v.   Stinson,  3  Sumn.  98,  ^  Bull.  N.  P.  239,  240;   supra,  §127- 

lOti,  107.     But  see  Kissam  v.  Forrest,  25  130,  139,  140. 

AVen.l.  651.  »  Supm,  §§  322,  323. 

■*  Ga.ss  w.  Stinson,  3  Sumn.  98,  where 
this  subject  is  fully  examined  by  Story,  J. 


CHAP,  v.]  RECORDS    AND   JUDICIAL   WRITINGS.  503    ^  ,\ 

I*. 

their  admissibility  in  evidence,  between  private  persons,  seems  to 
be,  that  they  are  matters  of  public  and  general  interest,  and  there- '  -. 
fore  within  some  of  the  exceptions  to  the  rule  in  regard  to  hearsay 
evidence,  which  we  have  heretofore  considered.^     Whether,  there 
fore,  the  adjudication  be  founded  on  oath  or  not,  the  principle 
of  its  admissibility  is  the  same.     And  moreover,  it  is  distinguished^'  Js 
from  other  hearsay  evidence,  in  having  peculiar  guaranties  for  its 
accuracy  and  fidelity .^    The  general  rule  in  regard  to  these  docu-s^ 
ments  is,  that  they  are  admissible  in  evidence,  but  that  they  are 
not  conclusive  except  against  the  parties  immediately  concerned, 
and  their  privies.     Thus,  an  inquest  of  office,  by  the   attorney^ 
general,  for  lands  escheating  to  the  government  by  reason 
alienage,  was  held  to  be  evidence  of  title,  in  all  cases,  but  iioi 
conclusive  against  any  person,  wdio  was  not  tenant  at  the  time  of 


ed. .:; 

eyj 

4i 


the  inquest,  or  party  or  privy  thereto,  and  that  such  persons, 
therefore,  might  sliow  that  tliere  Avere  lawful  heirs  in  esse,  who 
were  not  aliens.'^  So,  it  has  Ijeen  repeatedly  held,  that  inquisi- 
tions of  lunacy  may  be  read  ;  but  that  they  are  not  generally  con- 
clusive against  persons  not  actually  parties.^  But  'inquisitions, 
extrajudicially  taken,  are  not  admissible  in  evidence.^ 

1  Supra,  §§  127-140.  &  Glossop  v.  Pole,  3  M.  &  S.  175;  Lat- 

2  Phil.  &  Am.  on  Evid.  578,  579 ;  1  kow  v.  Earner,  2  H.  Bl.  437.     See  supra, 
Stark.  Evid.  260,  261,  263.  §  550,  that  the   inquisition  is  conchisive 

3  Stokes  V.  Dawes,  4  Mason,  268,  per  against  persons,   who    undertake    subse- 
Story,  J.  quently  to  deal  with  the  lunatic,  instead 

*  Sergeson  v.  Sealey,  2  Atk.  412 ;  Den  of  deahng  with  the  guardian,  and  seek  to 

r.  Clark,  5  Ilalst.  217,  per  Ewing,  C.  J. ;  avoid  his  authority,  collaterally,  bj"^  sliow- 

,Hart  V.  Deamer,  6  Wend.  497 ;  Faulder  ing   that  the  party  was  restored  to  his 

V.  Silk,  3  Campb.  126;   2  Madd.  Chan,  reason. 
678, 


50* 


594  LAW   OF   EVIDENCE.  [PART  III. 


CHAPTER    VL 


OF   PRIVATE  WRITINGS. 

I  *§  557.  How  private  writings  put  in  evidence. 

558.  What  evidence  required  of  the  loss  of  the  instrument. 

559.  Production  of  papers  in  hands  of  adverse  party  may  be  ordered. 

560.  Where  papers  in  hands  of  adverse  party,  notice  to  counsel  to  produce. 

561.  Cases  wiiere  no  such  notice  is  required. 

562.  Time  and  manner  of  serving  notice  to  produce  papers. 

563.  The  time  to  call  for  the  production  of  papers,  and  the  eifect  of  inspecting 

them. 
5G4.  Alterations  appearing  must  be  satisfactorily  accounted  for. 

565.  Material  alteration  of  instrument  will  avoid  it, 

566.  But  if  done  by  a  mere  stranger,  it  will  not  have  any  effect. 

567.  Addition  by  party  of  such  terms  as  the  law  supplies  has  no  effect. 

568.  Alteration  made  by  party,  with  fraudulent  intent,  avoids  instrument. 
568a.  If  made  by  consent  of  parties,  as  filling  blanks,  will  not  have  that  effect. 

569.  Sxibscribing  witness  must  be  produced  ;  admission  of  party  not  sufficient. 
569a.  Such  witness,  one  present  and  subscribing  at  the  time  of  execution. 

570.  The  rule  does  not  apply  to  writings  more  than  thirty  years  old. 

571.  Nor  to  papers  produced  by  the  adversary  on  notice,  he  claiming  an  interest 

in  the  suit,   under  them. 

572.  So  too  if  the  witness  is  incompetent,  or  cannot  be  produced. 

573.  Sometimes  claimed  that  official  bonds  need  not  be  proved. 

573a.  So  letters  received  in  reply  to  others  addressed  the  party  need  not  be 

proved. 
57.3?).  Where  the  writing  comes  onl}^  collaterally  in  question,  subscribing  witness 

need  not  be  called. 

574.  The  degree  of  search  required  for  subscribing  witness. 

57^  In  absence  of  subscribing  witness,  proof  of  signature  of  witness  or  party 
sufficient. 

576.  Comparison  of  handwriting  formerly  not  allowed. 

577.  Personal  knowledge  may  be  acquired  from  seeing  the  party  write,  or  having 

correspondence  with  him. 

578.  Comparison  allowed  where  witness  cannot  be  found,  from  lapse  of  time ;  or 

where  genuine  writings  already  in  the  case. 

579.  How  far  papers  may  be  put  in  the  case  to  enable  the  jm-y  to  compare  hand- 

writing. 

580.  The  present  English  rule  rejects  such  testimony. 

581.  The  decisions  in  America  not  altogether  uniform. 
581a.  Other  writings  admissible  to  prove  genuineness  by  comparison  of  spelling. 

582.  In  regard  to  secondary  evidence,  no  degrees  recognized. 
583-  The  effect  of  private  writings  already  considered ;  the  rest  belongs  to  jury. 
584.  Conclusion.! 


CHAP.  VI.]  PRIVATE   WPJTINGS.  595 

§  557.  The  last  class  of  written  evidence,  which  \vc  propose 
to  consider,  is  that  of  private  writings.  And  in  tlic  discussion 
of  this  subject,  it  is  not  intended  separately  to  mention  every 
description  of  writings,  comprised  in  tliis  clajs ;  but  to  state  the 
principles  which  govern  the  proof,  admissibility,  and  effect  of 
them  all.  In  general,  all  private  writings,  produced  in  evidence, 
must  be  proved  to  be  genuine ;  but  in  what  is  now  to  be  said, 
particular  reference  is  had  to  solemn  obligations  and  instruments, 
under  the  hand  of  the  party,  purporting  to  be  evidence  of  title ; 
such  as  deeds,  bills,  and  notes.  These  must  be  produced,  and 
the  execution  of  them  generally  be  proved  ;  or  their  absence  must 
be  duly  accounted  for,  and  their  loss  supplied  by  secondary  evi- 
dence. 

§  558.  And  first,  in  regard  to  the  production  of  such  docu- 
ments ;  if  the  instrument  is  lost,  the  party  is  required  to  give 
some  evidence,  that  sucli  a  paper  once  existed,  though  slight 
evidence  is  sufficient  for  this  purpose,  and  that  a  bond  fide  and 
diligent  search  has  been  unsuccessfully,  made  for  it  in  the  place 
where  it  was  most  likely  to  be  found,  if  the  nature  of  the  case 
admits  such  proof ;  after  which,  his  own  affidavit  is  admissible  to 
the  fact  of  its  loss.i  The  same  rule  prevails  where  the  instrument 
is  destroyed.     What  degree  of  diligence  in  the  search  is  necessary, 

1  Supra,  §  349-,  and  cases  there  cited,  ument  necessarily  involves  some  descrip- 

The  rule  is  not  restricted  to  tacts  pecu-  tive  proof  of  the  document  itself,  though 

liarly  within  the  party's  knowledsie  ;  but  not  to  the  degree  of  precision  subsequent- 

peniiits  liim  to  state  other  pertinent  facts,  ly  necessary  in  order  to  establish  a  title 

sucli  as,  Ins  searcli  for  tlie  document  else-  under  it;  and  on  the  other  hand,  a  strong 

where  than  among  his  own  papers.     Ved-  probability  of  its  loss  has  been  held  sutll- 

der  V.  Wilking,  .jDenio,  (;4.     In  regard  to  cient  to  let  in  the  secondary  evidence  of 

the  order  of  the  proof,  namelv,  whether  its  contents.     Bouldin  v.  Massie,  7  Wheat, 

the    existence    and    genuineness   of   the  122,  154,  1-55.     These  considerations  will 

paper,  and  of  course  its  general  character  go  far  to  reconcile  most  of  the  cases  ap- 

or  contents,  must  be  proved  before  any  evi-  parently  conflicting.     In  Fitch  v.  Bogue, 

dence  can  be  received  of  its  "loss,  the  de-  I'.t  Conn.  285,  the  order  of  the  proof  was 

cisions  are  not  uniform.     The  earlier  and  held  to  he  innnaterinl,  and  to  rest  in  the 

some  later  cases  require  that  this  order  discretion  of  the  court.     It   is  sutticient, 

should   be  strictly  observed.     Goodier  i:  if  the  party  has  done  all  that  could  rea- 

Lake,  1  Atk.  446 ;  Sims  v.  Sims,  2  Kep.  sonably  be  expected  of  Inm,  under  the 

Const.    Ct.    225;    Kimball   v.   JMorrell,   4  circumstances   of  the   case,  in   searching 

Greenl.     368;     Stockdale     v.    Young,    3  for   tlio  instrument.     Kelsey  v.   Ilanmer. 

Strobh.  501,  n.     In  otiier  cases  it  lias  been  IS    Conn.    R.  311.     After   the   loss   of  a 

lield,  tliat  in  the  order  of  proof,  the  loss  or  deed  has  been  established,  the  secondary 

destruction    of   the   i)aper   must  first  be  evidence  of  the  contents  or  substance  of 

shown.     Willis  r.  McDole,  2  South. -501;  tiie  contents  of  its  operative  parts  must  be 

Sterling  v.  Potts,   Id.  773 ;    Slirouders  v.  clear  and  direct,  and  its  execution  must 

Harper,  1  TIarringt.  444 ;  Finn  r.  M'Gon-  be   distinctly   proved.     And   the  declara- 

igle,    '.)    Watts    ^t    Serg.    75;    Murray    '•.  tious  of  the  grantor  are  admissible,  in  cor- 

Buchanau,  7  Blackf.  54U;  Parke  r.  Bird,  roboralion   of   the  otiier  evidence.     Met- 

3  Barr,  360.     But  on  tiie  one  hand  it  is  calf  v.   Van  Benthuysen,  3  Comst.  424; 

plain,  that  tlie  proof  of  Ihe  loss  of  a  doc-  Mariner  v.  Saunders,  5  Gilm.  113. 


59G  LAW   OF    EVIDENCE.  [PART   III. 

it  is  not  easy  to  define,  as  each  case  depends  much  on  its  peculiar 
cii-cuuistanccs,  and  the  question,  wliether  the_^loss  of  the  instru- 
ment  is  sufficiently  proved  to  admit  secondary  evidence  of  its  con- 
t.ejJLts,  is  to  be  dctermiufid.hy  .thl?«,CPUi:t  aud  not  by  the  jury.^  But 
it  seems,  that,  in  general,  the  party  is  expected  to  show  that  he 
lias  in  good  faith  exhausted,  in  a  reasonable  degree,  all  the  sources 
ol"  information  and  means  of  discovery  which  the  nature  of  the 
case  would  naturally  suggest,  and  which  were  accessible  to  him.^ 
lt_should  be  recollected,  that  the  object  of  the  proof  is  merely  to 
cstablisli^reasoiiable^jjresumption  of  the  loss  of  the  instrument ; 
and  that  this  is  a  preliminary  inquiry  addressed  to^  the  discretion 
of  the  judge.  If  the  paper  was  supposed  to  be  of  little  value,  or 
is  ancient,  a  less  degree  of  diligence  will  be  demanded,  as  it  will 
be  aided  by  the  presumption  of  loss,  which  these  circumstances 
afford.  If  it  belonged  to  the  custody  of  certain  persons,  or  is 
proved  or  may  be  presumed  to  have  been  in  their  possession,  they 
must,  in  general,  be  called  and  sworn  to  account  for  it,  if  they  are 
within  reach  of  the  process  of- the  court.-^  And  so,  if  it  might  or 
ought  to  have  been  deposited  in  a  public  office,  or  other  particular 
place,  that  place  must  be  searclicd.  If  the  search  was  made  by 
a  third  person,  he  must  be  called  to  testify  respecting  it.  And 
if  the  paper  belongs  to  his  custody,  he  must  be  served  with  a 
subpoena  duces  tecum,  to  produce  it."*      If  it  be  an  instrument, 

1  ra<re  V.  Page,  IG  Pick.  368.  [Wliile  plaintiff,  that  he  had  burnt  the  bond,  he 
it  is  a  general  rule  that  tlie  affidavit  of  the  being  interested  adversely  to  the  real 
]ilaiiitiir  must  Ije  pnxhuvd  where  a  paper  plaintiff,  has  been  held  sufficient  to  let 
is  alleged  to  be  lost,  of  which  he  must  be  in  secondary  evidence  of  its  contents. 
])resumed  to  have  tlie  custody,  before  sec-  Shortz  v.  Unangst,  3  Watts  &  Serg.  45. 
on(hiry  evidence  of  its  contents  can  be  [Where  a  party  has  been  deprived  of  an 
admitted,  yet  the  nde  is  not  inflexible,  instrument  by  fraud,  secondary  evidence 
Where  the  nominal  party  to  the  record  of  its  contents  is  admissible.  Grimes  v. 
\-i  not  the  i)arty  actually  seeking  to  re-  Kimball,  3  Allen,  518.  And  even  where 
cover,  and  the  ])arty  interested  lias  used  a  })arty  who  oflers  to  prove  the  contents 
due  diligence  to  Jintl  the  plaintiff  and  pro-  of  a  paper  has  himself  destroyed  it,  lie 
iluces  i)roof  tluit  Jie  has  absconded  to  may  explain  the  circumstances  of  th.e  de- 
parts unknown,  he  has  done  all  that  can  struction,  in  order  to  prove  the  contents, 
he  reasonably  reipiired  of  him,  and  the  Tobin  v.  iShaw,  45  Maine,  331.] 
I)n)ducti()ii  of  the  affidavit  of  the  absent  '*  Ralph  v.  Brown,  3  Watts  &  Serg. 
party    l(j    the   record   may   be   dispensed  395. 

with.    Poster    v.   Mackay,   7    Met.    531,         *  The  duty  of  the  witness  to  produce 

537.]  such   a  document  is  thus  laid  down  by 

-  IJex  V.  Morton,  4  M.  &  S.  48 ;  Rex  Shaw,  C.  J.  :  "  There  seems  to  be  no  dif- 

>•.  Castleton,  <i  T.  H.  "iSB ;  1  Stark.  Evid.  ference  in  principle  between  compelling  a 

:;3t1-34(>;  Willis  r.  McDolc,  2  South.  501;  witness  to  produce  a  document  in  his  pos- 

'I'liomitson  '•.  Travis,  8  Scott,  85;  Parks  session,  under  a  .sc/^/jtf-w't  (hires  tfcuin,  in  a 

V.  Dunklee,  3  W.atts  &  Serg.  2U1 ;  Gath-  case  where  the  party  calling  the  witness 

ercole  i;.  Miall,  15  Law  dourn.  179;  Doe  v.  has  a  right  to  the  use  of  such  document, 

Lewi.s,  15  .Jur.  512;   5  Eng.  L.  &  Eq.  R.  and   compelling  him    to   give   testin)ony, 

4tJ<).       The    admission    of    the     nominal  when   the   facts  lie  in    his    own    knovvi- 


CHAP.  VI.] 


PRIVATE   WRITINGS. 


597 


which  is  the  foiiiKlatiqn  of  the  action,  and  -which,  if  found,  the 
defendant  may  he  compelled  again  to  pay  to  a  bond  fide  holder, 
the  plaintiff  must  give  sufficient  proof  of  its  destruction,  to  satisfy 
the  court  and  jury  that  the  defendant  cannot  be  liable  to  pay  it 
a  second  time.^  And  if  the  instrument  was  executed  in  duplicate, 
or_.  triplicate,  or  more  parts,  the,  loss  of  .all  „ the  parts  mii&t_ Im 
proved,  in  order  to  let  in  secondary  evidence  of  JliQ.  contents,^ 
Satisfactory  proof  being  thus  made  of  the  loss  of  the  instrument, 
the  party  will  be  admitted  to  give  secondary  evidence  of  its  con- 
tents.^ [*  Where  the  party  voluntarily  destroys  written  evidence 
in  his  favor,  he  cannot  be  allowed  to  give  evidence  of  the  contents 
of  such  writing  in  a  suit  in  his  own  favor  founded  upon  the  writ- 
ing, without  first  introducing  evidence  to  rebut  any  inference  of 
fraud  arising  from  his  destroying  such  written  evidence.^] 

§  559.  The  production  of  private  writings,  in  which  another  per- 
son has  an  interest,  may  be  had  either  by  a  bill  of  discovery,  in 
proper  cases,  or  in  trials  at  law  by  a  writ  of  subpoena  duces  tecum,^ 


edge.  It  has  been  decided,  though  it  was 
formerly  doubted,  that  a  stibpcena  duces 
tecum  is  a  writ  of  compulsory  obligation, 
winch  the  court  has  power  to  issue,  and 
wliich  the  witness  is  bound  to  obey, 
and  which  will  be  enforced  by  proper 
process  to  compel  the  production  of  the 
paper,  when  the  witness  has  no  lawful  or 
reasonable  excuse  for  withholding  it. 
Amey  v.  Long,  9  East,  473 ;  Corsen  v. 
Dubois,  1  Holt's  N.  P.  R.  239.  But  of 
such  lawful  or  reasonable  excuse,  the 
court  at  nisi  prius,  and  not  the  witness,  is 
to  judge.  And  wlien  the  witness  has  the 
paper  ready  to  produce,  in  obedience  to 
the  summons,  but  claims  to  retain  it  on 
the  ground  of  legal  or  equitable  interests 
of  his  own,  it  is  a  questitm  to  the  dis- 
cretion of  the  court,  under  the  circimi- 
stances  of  the  case,  whether  the  witness 
ought  to  produce,  or  is  entitled  to  with- 
liold  the  paper."  Bull  v.  Loveland,  10 
Pick.  14. 

1  Hansard  v.  Robinson,  7  B.  &  C.  90; 
Lubbock  V.  Tribe,  3  M.  &  W.  607.  See 
also  Peabody  v.  Deuton,  2  Gall.  351;  An- 
derson V.  Hobson,  2  Day,  4',i5;  Davis  r. 
Todd,  4  Taunt.  (502 ;  Picrson  v.  Hutchin- 
son, 2  Canipb.  211;  Rowley  v.  Ball,  3 
Cowen,  303 ;  Ivirby  v.  Sisson,  2  Wend. 
550;  Murray  c.  Carrett,  3  Call.  373; 
Mayor  v.  Johnson,  3  Campb.  324 ;  Swift 
V.  Stevens,  8  Conn.  431 ;  Raniuz  v. 
Crowe,  11  Jur.  715;  post,  vol.  2,  §  150. 

-  Bull.  2^.  P.  254 ;  Rex  v.  Castleton,  G 


T.  R.  236 ;  Doe  v.  Pulman,  3  Ad.  &  El 
622,  X.  s. 

'^  See,  as  to  secondary  evidence,  supra, 
§  84,  and  note.  Where  secondary  evi- 
dence is  resorted  to,  for  proof  of  an  instru- 
ment which  is  lost  or  destroyed,  it  must, 
in  general,  be  proved  to  have  been  exe- 
cuted. Jackson  v.  Frier,  16  Johns.  196 ; 
Kimball  v.  Morrell,  4  Greenl.  368 ;  Kelsej' 
V.  Hanmer,  11  Conn.  R.  311 ;  Porter  v. 
Ferguson,  4  Flor.  R.  102.  But  if  the  sec- 
ondary evidence  is  a  copy  of  the  instru- 
ment which  appears  to  have  been  attested 
by  a  witness,  it  is  not  necessar}-  to  call 
this  witness.  Poole  v.  Warren,  3  Nev.  & 
P.  693.  In  case  of  the  loss  or  destruction 
of  the  instrument,  the  admissions  of  the 
party  may  be  proved  to  estabhsli  both 
its  existence  and  contents.  jNIauri  r. 
Hcffernan,  13  Johns.  58,  74  ;  Thomas  v. 
Harding,  8  Greenl.  417  ;  Corbin  v.  Jack- 
son, 14  Wend.  619.  A  copy  of  a  docu- 
ment, taken  by  a  machine,  worked  by  the 
witness  who  produces  it,  is  admissible  as 
secondary  evidence.  Simpson  v.  Thore- 
ton,  2  M.  &.  Rob.  433.  [*A  machine 
copy  of  a  letter  of  the  plaintiff  to  a  tliiid 
party  was  received  as  evidence  of  an  ad- 
mission on  his  part,  although  not  admissi- 
ble as  a  letter.  Kathan  v.  Jacob,  1  F.  & 
F.  452.] 

*  ( *  Joannes  v.  Bennett,  5  Allen,  169. 
See  also  Bagley  v.  McMickle,  9  Cal.  430.] 

*  See  the  course  in  a  parallel  case, 
where  a  witness  is  out  of  the  jurisdictiou. 


598  LAW    OF    EVIDENCE.  [PART    III. 

(lirectetl  to  tlic  person  who  has  them  in  his  possession.  The  courts 
of  coninion  hiw  may  also  make  an  order  for  the  inspection  of  writ- 
hii/s  in  the  possession  of  one  party  to  a  suit,  in  favor  of  the  other. 
Tlie  extent  of  tliis  power,  and  the  nature  of  the  order,  whether  it 
.should  lie  percmi)tory,  or  in  the  shape  of  a  rule  to  enlarge  the 
time  to  plead,  unless  the  writing  is  produeed,  does  not  seem  to 
he  very  clearly  agreed;^  and,  in  the  United  States,  the  courts 
have  been  unwilling  to  exercise  the  power,  excepi  where  it  is 
"iven  by  statute.^  It  seems,  however,  to  be  agreed,  that  where 
tlie  action  is  ex  contractu,  and  there  is  but  one  instrument  between 
the  parties,  which  is  in  the  possession  or  power  of  the  defendant, 
to  which  the  plaintiff  is  either  an  actual  party,  or  a  party  in 
interest,  and  of  which  he  has  been  refused  an  inspection,  upon 
request,  and  the  production  of  which  is  necessary  to  enable  him 
to  declare  against  the  defendant,  the  court,  or  a  judge  at  chambers, 
may  grant  him  a  rule  on  the  defendant  to  produce  the  document, 
or  give  him  a  copy,  for  that  purpose.^  Such  order  may  also  be 
obtained  by  the  defendant,  on  a  special  case ;  such  as,  if  there  is 
reason  to  suspect  that  the  document  is  forged,  and  the  defendant 
[  wishes  that  it  may  be  seen  by  himself  and  his  witnesses.'^  But,  in 
1  all  such  caseSj  the  application  slpuldjjc  siippprted  b}^  the  affidavit 
I joT  .the  party,  particularly  stating-  the  circumstances.^     [  *  And  it 

supra,  §  320.    It  is  no  sufficient  answer  A  prima  facie  case  of  the  existence  of  the  ' 

for  a  witness  not  obeying  this  subpoena,  pajn  r  ami  its  iiiatiriality  must  be  made 

that  the  instrument  required  was  not  ma-  mil,  ami  tliv  cimrt  will  tlicn  ])ass  an  orJer 

terial.     Doe  v.  Kelly,  4  Dowl.  273.     But  n(A(, leavlag'tlif  opi)oj.il(Ji»arty  to  prochice, 

see   Kex  v.  Ld.  John  Russell,  7  Dowl.  or  to  sliow  cause  at  the  trial,  wliere  alone 

6'J3.  the   materiality    can    be   finally    decided. 

1  Supra,  §  320.     If  the  applicant  has  lasigi  v.  Brown,  1  Curtis,  C.  C.  401.     For 

no  legal  interest  in  the  writing,  wliicli  he  other  decisions  under  this  section  of  tlie 

requests  leave  to  inspect,  it  will  not  be  statute,  see  Hylton  v.  Brown,  1  Wash.  C.  C. 

grauted.     Powell  v.  Bradbury,  4  M.  G.  &  K.  298  ;    Bas  v.   Steele,  3  lb.  381  ;  Dun- 

S.   .041;    13  Jur.   34y.      And   see  supra,  ham  c.  Riley,  4  lb.  126 ;  Vasse  ?;.  Mifflin, 

§  473.  lb.  5iy.] 

■^  [By  the  act  of  Sept.  24,  1789  (1  U.  S.         ^  3  5  Chitty's  Gen.  Pr.   433,   434  ;    1 

Stat,  at  Large,  82),  it  is  provided  that  the  Tidd's    Pr.    5'JO,    591,    592;    1   Paine   & 

courts  of  the  United  States  "  shall  have  Duer's  Pr.  486-488 ;  Graliam's  Practice, 

jtower  in  all  actions  at  law,  on  motion  and  p.  524  ;    Lawrence  v.  Ocean  Ins.  Co.  11 

•  hie  notice  thereof  being  given,  to  require  Johns.   245,  n.   (a) ;   Jackson  v.  Jones,  3 

ilie  jiarties  to  produce  books  or  writings  Cowen,  17;  Wallis  v.  Murray,  4  Cowen, 

in   their  possession  or  power,  which  con-  399;  Denslow  v.  Fowler,  2  Cowen,  592; 

tain   evidence  pertinent  to  the  issue,  in  Daven])ort   v.   M'Kinnie,    5   Cowen,   27  ; 

cases    and    under    circumstances     where  Utica  liank  v.  Hilliard,  6  Cowen,  62. 
they  might  be  compelled  to  produce  the  ^  Brush   v.    Gibbon,   3  Cowen,   18,  n 

same  by  the  ordinary  rules  of  ])roceoding  (a). 

in  chancery;"    and   in  case  of  the  non-  ^  3  Chitty's  Gen.  Pr.  434.     This  course 

production  thereof  upon  such  order,  the  being  so  seldom  resorted  to  in  the  Amer- 

eourt  may   direct  a   iKjnsuit  or   default,  ican  connnon-law  courts,  a  more  particu- 

Uniler  this  statute,  an  order  to  produce  lar  statement  of  the  practice  is  deemed 

may  be  applied  for  before  trial,  upon  notice,  unnecessary    in    this   place.     See   Law's 


CHAP.  VI.]  PRIVATE   WRITINGS.  599 

seems  that  in  most  cases  the  defendant  will  be  entitled  to  an  in- 
spection of  his  own  letters,  in  the  hands  of  the  opposite  party, 
when  the  action  is  based  upon  evidence  contained  in  them,  where 
no  copies  were  retained  and  the  inspection  was  necessary  to  the 
defence.^  And  so  also  a  plaintiff,  who  claimed  damages  of  a 
railway  company  for  dismissing  him  from  the  office  of  superin- 
tendent, it  was  held  that  he  was  entitled  to  have  an  inspection 
of  all  entries  or  minutes  in  the  company's  books  having  reference 
to  his  employment.^  But  the  defendant  is  not  entitled  to  inspect 
his  own  letters  to  the  plaintiff,  in  an  action  for  breach  of  promise 
of  marriage,  upon  an  affidavit,  that  the  promise,  if  any,  was  con- 
tained in  the  letters.^  And  the  court  will  not  grant  an  inspection 
of  documents  produced  at  the  trial,  with  a  view  to  discover  grounds 
to  move  a  new  trial.'^] 

§  560.  When  the  instrument  or  writing  is  in  the  hands  or  power 
of  the  adverse  party,  there  are,  in  general,  except  in  the  cases 
above  mentioned,  no  means  at  law  of  compelling  him  to  produce 
it ;  but  the  practice,  in  such  cases,  is,  to  give  him  or  his  attorney 
a  regular  notice  to  produce  the  original.  Not  that,  on  proof  of 
such  notice,  he  is  compellable  to  give  evidence  against  himself; 
but  to  lay  a  foundation  for  the  introduction  of  secondary  evidence 
of  the  contents  of  the  document  or  writing,  by  showing  that  the 
party  has  done  all  in  his  power  to  produce  the  original.^ 

U.  S.  Courts,  35,  36.     [In  England  it  has  necessary  to  make  out  a,  prima  facie  case; 

been  held  that  under  the  Common-Law  but  it  extends  to  any  deeds  which  may 

Procedure  Act  (1S54),  17  &.  18  Vict.  ch.  tend  to  support  or  strengthen  the  case  on 

125,  the  court  will  not  grant  a  discovery  the  part  of  the  plaintiff.     The  rule  that^ 

of  documents  except  ujion  the  affidavit  of  one .  party  luis  no  ri^iht  to  Iiii] '    '   "^ 

tlie /'U(Vy  to  the  suit ;  the  affidavit  of  the  niuiitj  wiiich   make  "in    inr   ;:: 

attonu-y  not  being  sufficient,  although  the  otTuT   dia->   nut  aiiply,  i[   li.c^.u.;;-.  _i„^_ 

party  himself  is  abroad.      Herschtield  v.  ouLlii^uun.     (  o-u  r  ■.  llaiing,  lb.  obo.J 
Clark,  34  Eng.  Law  &  Eq.  549.     [*But  '   |  '  I'licL-  ,-.  llarii>uii,  .s  C.  B.  n.s.  617. 

in  the  case  of  a  corporation,  the  affidavit  -  Hill  c.  Great  AVestern  Kailway  Co. 

may    be    made    by    attorney.     Bull     v.  10  C.  B.  n.  s.  1-18. 

Clarke,  15C.  B.  n.s.  851. ]  Before  a  party         ^  Hanier  v.  Sowerby,  3  Law  T.  n.  s. 

can  be  called  ui)on  to  produce  a  document  734,  Q.  B. 

for  the  purposes  of  evidence,  it  must  be         *  Pratt  v.  Goswell,  9  C.  B.  n.  s.  706.] 
shown  that  it  is  in  his  possession.     Lax-  ^  9  Tidd's  Pr.  802 ;  1  Paine  &  Duer's 

ton  V.  Reynolds,  28  lb.  553.     It  is  not  an  Pr.  483 ;  Graham's  Practice,  p.  528.     2s o- 

answer  to  an  application  for  an  order  for  tice    to    product.'    tin,'   iiistruuicnt  is   not 

A    discovery    of    documents,    that    they  alone  sutlicicnt  tu  admii  the  party  to  give 

are    privileged   from    being  produced;  if  secondary   ,i    '•■i.  •     ..      >-   ... litems — JJ^ 

such  be  the  fact  it  must  be  shown  in  the  niustproM  "XiiiiS^ 

affidavit  made  in  obedience  to  the  order.  Sliarpe   r.    i  ,'     154^     He 

' Porshaw  v.  Lewis,  2'J  lb.  488.     The  right  must  also  show  that  the  insiiunient  is  in 

of  a   plaintiff  under   the    statute    (14    &  the  possession,  or  under  the  control,  of  the 

15    Vict.    c.    *d'd),    to    inspect    deeds    in  party   required   to  produce  it.     Smith  v. 

the   defendant's    custody,    wliere   such   a  Sleap,  1   Car.  &    Kirw.   48.     But   of  this 

right   exists,   is   not  limited   by  what  is  fact  very  slight  evidence  will  raise  a  suffi- 


600 


LAW   OF   EVIDENCE. 


[part   III. 


§  501.  There  arc  three  cams  in  which  such  notice  to  produce  is 
not  neceuary.  First,  where  the  instrument  to  be  produced  and 
that  to  be  jiroved  are  duplicate  oricjinals ;  for,  in  such  case,  the 
ori"-inal  being  in  the  hands  of  the  other  party,  it  is  in  his  power 
to  contradict  the  duplicate  original  by  producing  the  other,  if  they 
vary ;  ^  secondly,  where  the  instrument  to  be  proved  is  itself  a 
notice,  such  as  a  notice  to  quit,  or  notice  of  the  dishonor  of  a  bill 
of  exchange ;  and,  thirdly,  where,  from  the  nature  of  the  action, 


cient  presumiition,  where  the  instrument 
exclusively  belon,!i;s  to  hini,  and  liiis  re- 
cently been,  or  ro'^uhirly  ouj^ht  to  be,  in 
his  possession,  acconling  to  the  course  of 
business.  Henry  v.  Leigh,  o  Campb.  499, 
502;  Harvey  v.  Mitchell,  2  M.  &  Rob. 
3G(J;  Robb  v.  Starkey,  2  C.  &  K.  143. 
And  if  the  instrument  is  in  the  possession 
of  another,  in  privity  with  the  party,  such 
as  his  banker,  or  agent,  or  servant,  or  the 
like,  notice  to  the  party  himself  is  suffi- 
cient. Baldney  v.  Ritchie,  1  Stark.  R. 
338 ;  Sinclair  v.  Stevenson,  1  C.  &  P. 
582;  Burton  v.  Payne,  2  C.  &  P.  520; 
I'artridge  v.  Coatcs,  Ry.  &  M.  153,  156 ; 
Taplin  v.  Atty,  3  Bing.  164.  If  a  deed  is 
in  the  hands  of  an  attorney,  having  a  lien 
upon  it,  as  security  for  money  due  from 
his  client,  on  which  ground  he  refuses  to 
produce  it  in  obedience  to  a  suhpmia  duces 
itciiin,  as  he  justly  may  ;  Kemp  v.  King,  2 
M.  &  Rob.  437  ;  Regina  v.  Hankins,  2  C. 
&  K.  823 ;  the  party  calling  tor  it  may 
give  secondary  evidence  of  its  contents. 
Doe  V.  Ross,  7  M.  &  W.  102.  So,  if  the 
deed  is  in  court,  in  the  hands  of  a  third 
person  as  mortgagee,  who  has  not  been 
pubpcenaed  in  the  cause,  and  he  declines 
to  produce  it,  secondary  evidence  of  its 
contents  is  admissible  ;  but  if  the  deed  is 
not  in  coin-t,  and  he  has  not  been  sub- 
pn-naed,  it  is  otherwise.  In  such  case,  the 
jicrson  having  custody  of  the  deed  must 
only  state  the  date  and  names  of  the  par- 
ties, in  order  to  identify  it.  Doe  v.  Clif- 
fonl,  2  C.  &  K.  448.  The  notice  to  pro- 
duce may  be  given  verbally.  Smith  v. 
Young,  1  Campb.  440.  ..After.aiuiiui-auxL 
ri;tusal  to  produce  a  p.ipcr,  and  secyudarjT,.. 
^'^JJilli;;*.'.  given  of  its  roiitonts.  the  ad- 
vei>e  party  (•.iimDt  at'ici-wanls  produce  the 
fiociinifin  a-  hi-  (AMI  cviijcnce.  Doer. 
Ifo^lgsun,  4  ('.  \  1).  irj:  VI  Ad.  &  El. 
135,  s.  c.  [Where  the  plaintiff  gave  no- 
tice to  the  defendant  to  produce  at  the 
trial  an  t)riginal  contract,  and  affixed  what 
]iiM-iiorted  to  be  a  co]>y  of  it  to  the  notice, 
and,  aithougii  the  pretendeil  co])y  was  not 
in  all  respects  correct,  secondary  evi- 
dence was  allowed  on  ihe  neglect  "of  the 


defendant  to  jiroduce  the  original,  it  was 
held,  tliat  the  defendant  could  not  use  the 
copy  attached  to  the  notice,  although  cer- 
tified to  be  correct  by  the  plaintiff',  while 
he  had  the  original  in  his  possession. 
Bogart  V.  Brown,  5  Pick.  18.  In  New 
York,  it  has  been  held  that  certain  courts 
have  authority  to  compel  a  defendant  in  a 
suit  pending  therein  to  produce  and  dis- 
cover books,  papers,  and  documents,  in 
his  possession  or  power,  relating  to  the 
merits  of  such  suit,  and  if  the  defendant 
refuses  to  comply,  his  answer  may  be 
stricken  out,  and  judgment  rendered 
against  him  as  for  a  neglect  to  answer. 
Gould  V.  McCarty,  1  Kernan,  575.  In 
Georgia,  a  party  may  bo  required  in  a 
proper  case,  to  produce  documents  to  be 
annexed  to  interrogatories  propounded  by 
the  party  calling  for  them  ;  the  courts  re- 
quiring that  a  copy  of  the  documents 
shall  be  left  in  the  place  of  the  original  to 
be  used  as  suclx  in  case  the  original  be  not 
returned,  and  that  the  party  calling  for 
the  document  shall  give  security  to  the 
party  producing  it,  for  its  being  safely  re- 
turned. Faircloth  v.  Jordan,  15  Geo.  511. 
Where  the  counsel  in  a  case  have 
agreed  that  either  party  shall  produce 
upon  notice  at  the  trial,  any  papers  which 
may  be  in  his  possession,  the  failure  of 
the  plaintiff  (the  agent  in  America  of  a 
firm  in  London),  to  produce  upon  such 
notice  an  invoice  of  goods  consigned  to 
his  ])rincipals  in  Ixmdon,  is  not  such  a 
failure  to  comply  with  the  agreement  as 
will  admit  parol  testimony  of  the  contents 
of  the  invoice,  for  it  is  to  be  presumed 
that  the  invoice  had  been  forwarded  to 
the  consignees.  The  offer  of  the  plaintiff 
to  prove  that  such  was  the  fact,  and  the 
concession  without  proof  by  the  defendant 
that  it  was  so,  preclude  him  from  after- 
wards objecting  tluit  proof  was  not  given. 
Turner  v.  Yates,  16  How.  U.  S.  14.] 

1  Jury  V.  Orchard,  2  B.  &  P.  39,  41 ; 
Doe  V.  Somerton,  7  Ad.  &  El.  58,  n.  s.  ; 
9  Jur.  775,  s.  c. ;  Swain  v.  Lewis,  2  C.  M. 
&  R.  261. 


CHAP.  VI.] 


PRIVATE  WRITINGS. 


601 


the  defendant  has  notice  that  the  plaintiff  intends  to  charge  him 
with  possession  of  the  instrument,  as,  for  example,  in  trover  for 
a  bill  of  exchange.  And  the  j)riiiciplc  of  the  rule  docs  not  require 
notice  to  the  adverse  party  to  produce  a  pa]jcr  belonging  to  a 
third  person,  of  which  he  has  fraudulently  obtained  possession ; 
as,  where,  after  service  of  a  suhpoena  duces  tecum,  the  adverse 
party  had  received  the  paper  from  the  witness,  in  fraud  of  the 
subpoena.^     [*But  where  the  notice  is  an  act  of  possession,  warn- 


1  2  Tidd's  Pr.  803.  Proof  that  the  ad- 
verse party,  or  his  attorney,  has  the  in- 
strument in  court,  does  not,  it  seems,  ren- 
der notice  to  produce  it  unnecessary ;  for 
the  object  of  tlie  notice  is  not  only  to  i)ro- 
cure  the  paper,  but  to  give  the  party  an 
ojjportunity  to  provide  the  proper  testi- 
mony to  support,  or  impeacli  it.  Doe  v. 
Grey,  1  Stark.  \l.  2S8 ;  Exall  v.  Par- 
tridge, lb.  cit. ;  Knight  r.  Marquis  of  Wa- 
tertbrd,  4  Y.  &  Col.  "284.  The  rule,  as  to 
dispensing  with  notice,  is  the  same  in 
equity  as  at  law.  2  Dan.  Ch.  Pr.  1023. 
[A  rule  of  court,  that  a  notice  to  produce 
a  paper  must  precede  parol  evidence  of 
its  contents,  is  waived  by  a  party's  offer- 
ing to  produce  it.  If  lie  then  fails  to 
find  it,  but  asks  for  no  further  time,  the 
parol  evidence  is  admissible.  Dwinell  v. 
Larrabee,  38  Maine,  464.  For  the  pur- 
pose of  proving  that  the  defendant  has 
fraudulently  conveyed  his  real  estate  to 
thii-d  persons,  copies  of  the  deeds  thereof 
from  the  registry  are  admissible,  the  origi- 
nals not  beiug  presumed  to  be  in  the  pos- 
session of  either  party  to  the  suit.  Blan- 
chard  v.  Young,  11  Cush.  341,  345.  But 
a  registry  copy  of  a  deed  of  land  is  not 
admissible  in  evidence  against  the  grantee 
without  notice  to  him  to  produce  the  origi- 
nal. Commonwealth  v.  Emery,  2  Gray, 
80,  81 ;  Bourne  v.  Boston,  lb.  494,  4'J7. 
In  delivering  the  opinion  of  the  coiu-t  in 
Commonwealth  i\  Emery,  ut  supra,  Shaw, 
C.  J.,  said,  "  The  rule,  as  to  the  use  of 
deeds  as  evidence,  in  this  commonwealth, 
is  founded  partly  on  the  rules  of  connuon 
law,  but  modified  to  some  extent,  by  the 
registry  system  established  here  by  stat- 
ute. The  theory  is  this :  that  an  original 
deed  is  in  its  nature  more  authentic  and 
better  evidence  than  any  copy  can  be ; 
that  a  copy  is  in  its  nature  secondary ; 
and  therefore  in  all  cases  original  deeds 
sliould  be  required,  if  they  can  be  had. 
But  as  this  would  be  burdensome  and  ex- 
pensive, if  not  impossible,  in  many  cases, 
some  relaxation  of  this  rule  was  necesstuy 
for  practical  purposes.  The  law  assumes 
that  the  grantee  is  the  keeper  of  deeds 
made  directly  to  himself;   when  then  he 


has  occasion  to  prove  any  fixct  by  such 
deed,  he  cannot  use  a  copy,  because  it 
would  be  oflering  inferior  evidence,  when 
in  theory  of  law  the  sujjerior  is  in  his  own 
possession  or  ])ower.  It  is  only  on  proof 
of  the  loss  of  the  original,  in  such  case, 
that  any  secondary  evidence  can  be  re- 
ceived. Our  system  of  conveyancing, 
modified  bj'  the  registry  law,  is,  that  each 
grantee  retains  the  deed  made  immedi- 
ately to  himself,  to  enable  him  to  make 
good  his  warranties.  Succeeding  gran- 
tees do  not,  as  a  matter  of  course,  take 
possession  of  deeds  made  to  preceding 
parties,  so  as  to  be  able  to  prove  a  chain 
of  title,  by  a  series  of  original  deeds. 
Every  grantee  therefore  is  the  keeper  of 
his  own  deed,  and  of  his  own  deed  only. 
But  there  is  another  rule  of  practice  aris- 
ing from  the  registry  law,  and  the  usage 
under  it,  which  is,  that  all  deeds,  before 
being  offered  in  evidfence  as  proof  of  title, 
must  be  registered.  The  register  (>f  deeds 
therefore  is  an  officer  of  the  law,  with 
competent  authority  to  receive,  compare, 
and  record  deeds ;  his  certificate  verifies 
the  copy  as  a  true  transcript  of  the  origi- 
nal, and  the  next  best  evidence  to  prove 
the  existence  of  the  deed ;  though  it  fol- 
lows as  a  consequence,  that  such  copy  is 
legal  and  competent  evidence,  and  dis- 
penses with  original  proof  of  its  execution 
by  attesting  witnesses.  In  cases  there- 
fore, in  which  the  original,  in  theory  of 
law,  is  not  in  the  custody  or  power  of  the 
l)arty  having  occasion  tfl  use  it,  the  certi- 
fied office  copy  is /*/■//«« /(/(vV  evidence  of 
the  original  and  its  execution,  subject  to 
be  controlled  by  rebutting  evidence.  But 
as  this  arises  from  the  consideration,  that 
the  original  is  not  in  the  power  of  the 
party  relying  on  it,  the  rule  does  not  ap- 
ply, where  such  original  is,  in  theory  of 
law,  in  possession  of  the  adverse  party; 
because  upon  notice  the  adverse  party  is 
bound  to  produce  it,  or  put  himself  in  such 
position,  that  any  secondary  evidence  may 
be  given.  Should  it  be  objected  that, 
upon  notice  to  the  adverse  party  to  pro- 
duce an  original,  and  the  tender  of  a  paper 
in  answer  to  the  notice,  the  pai'ty  calling 


51 


G02 


LAW   OF   EVIDENCE. 


[part  ni. 


ing  others  of  the  phiiiitiir's  claim,  a  copy  is  not  evidence,  until 
the  al)sence  of  the  original  is  accounted  for.^] 

§  502.  The  notice  may  be  directed  to  the  party,  or  to  his  attorney, 
and  may  be  served  on  either ;  and  it  must  describe  the  writing 
demanded,  so  as  to  leave  no  doubt  that  the  party  was  aware  ot 
the  jiarticular  instrument  intended  to  be  called  for.^  But  as  to 
the  time  and  jAace  of  the  service,  no  precise  rule  can  be  laid 
down,  except  that  it  must  be  such  as  to  enable  the  party, 
under  the  known  circumstances  of  the  case,  to  comply  with  tlie 
call.  Generally,  if  the  party  dwells  in  anotlier  town  than  that 
in  which  tlie  trial  is  had,  a  service  on  him  at  the  place  where  the 
trial  is  had,  or  after  he  has  left  home  to  attend  the  court,  is 
not  sufficient.^  But  if  the  party  has  gone  abroad,  leaving  the 
cause  in  the  hands  of  his  attorney,  it  will  be  presumed  that  he 
left  with  the  attorney  all  the  papers  material  to  the  cause,  and 
the  notice  should  therefore  be  served  on  the  latter.  The  notice, 
also,  should  generally  be  served  previous  to  the  commencement 
of  the  trial.'* 

§  563.  The  regular  time  for  calling  for  the  production  of  papers 
is  not  until  the  ])arty  who  requires  them  has  entered  upon  his 
case  ;  until  Avliich  time  the  other  party  may  refuse  to  produce 
them,  and  no  cross-examination,  as  to  their  contents,  is  usually 


for  tJie  deed  niijiht  deny  that  tlie  paper 
tendered  was  tlie  true  j)aper  called  for ;  it 
would  he  easy  to  ascertain  the  identity  of 
tiie  paper,  hy  a  comparison  of  the  contents 
of  the  paper  tendered  with  the  copy  of- 
fered, and  hy  the  official  certificate,  which 
the  rej^ister  of  deeds  is  required  to  make 
on  the  orijfinal,  when  it  is  recorded.  This 
construction  of  the  rule  will  carry  out  the 
principle  on  which  it  is  founded,  to  insist 
on  the  hetter  evid'-nce  when  it  can  practi- 
cally he  had,  anTl  allow  the  secondary 
only  when  it  is  necessary."]  [*  See  as  to 
fraud,  or  the  f(»rni  of  the  action,  excusing 
notice  to  [intduce  papers  in  the  hands  of 
tlie  adversary,  Neatley  v.  Greenough,  5 
Poster,  •j2b.\ 

1  [*I.Kjmbardo  v.  Ferguson,  15  Cal. 
372.] 

-  Rogers  i-.  Custance,  2  M.  &  Kob.  179. 

'  George  v.  Thompson,  4  Dowl.  OOG; 
Foster  r.  Pointer,  'J  (J.  &  V.  718  ;  [Glenn 
r.  Rogers,  :J  Md.  ;512.]  See  also,  as  to  the 
time  of  service,  Holt  v.  Miers,  'J  C.  &  P. 
I'Jl ;  Keg.  V.  Kitsen,  20  Kng.  L.  &  Eq.  R. 
6yO.     As  Uj  the  form  and  service  of  notice 


to  quit,  see  post,  vol.  2,  §_§  322-32-4 ;  Doe 
V.  Somerlon,  7  Ad.  &  El.  58. 

*  2  Tidd's  Pr.  803  ;  Hughes  v.  Budd,  8 
Dowl.  315  ;  Firkin  v.  Edwards,  9  C.  &  P. 
478 ;  Gibbons  v.  Powell,  Id.  G34 ;  Bate  v. 
Kinsey,  1  C.  M.  &  R.  38 ;  Emerson  v. 
Fisk,  G  Greenl.  200 ;  1  Paine  &  Duer's 
Pr.  485,  48G.  The  notice  must  point  out, 
with  some  degree  of  precision,  the  {)aj)ers 
required.  Notice  to  produce  "  all  letters, 
liapers,  and  documents  touching  or  con- 
cerning the  bill  of  exchange  mentioned  in 
the  declaration,  and  the  debt  souglit  to  be 
recovered,"  has  been  held  too  general. 
France  v.  Lucy,  Ry.  &  M.  341.  So,  "to 
produce  letters,  and  copies  of  letters,  and 
all  books  relating  to  this  cause."  Jones  v. 
Edwards,  1  jMcCI.  &  Y.  139.  But  notice  to 
l)roduce  all  letters  written  hy  the  party 
to  and  received  by  the  other,  between  the 
years  1837  ami  1841,  inclusive,  was  held 
sufficient  to  entitle  tlie  party  to  call  for  a 
particular  letter.  Morris  v.  Hauser,  2  M. 
&  Rob.  392.  [And  as  a  general  rule  the 
notice  is  not  a  reasonable  one,  unless  given 
before  the  trial  is  conmienced.  Choteau 
v.  Raitt,  20  Ohio,  132.] 


CHAP.  YI.] 


PRIVATE   WRITINGS. 


603 


permitted.^  The  {)roduction  of  pa{)ers,  upon  notice,  does  not  make 
them  evidence  in  the  cause,  unle:?s  the  party  calling  for  them 
inspects  them,  so  as  to  become  ac(iuainted  with  their  contents  ; 
in  which  case,  the  English  rule  is,  that  they  are  admitted  as  evi- 
dence for  both  parties.^  The  reason  is,  that  it  would  give  an 
unconscionable  advantage,  to  enable  a  party  to  pry  into  the  affairs 
of  his  adversary  for  the  purpose  of  compelling  him  to  furnish 
evidence  against  himself,  without,  at  *the  same  time,  sulrjecting 
him  to  the  risk  of  making  whatever  he  inspects  evidence  for  both 
parties.  But  in  the  American  courts,  the  rule  on  this  suljject  is 
not  uniform.^ 

§  564:.  If,  on  the  production  of  the  instrument,  it  appeal's  to 
have  been  altered,  it  is  incumbent  on  the  p> arty  offering  it  in  e\'idence, 
to  explain  this  appearance.'*     Every  alteration  on  the  face  of  a 


1  Supra,  §§  447,  463,  4G4.  [*Biit 
where  the  phiintirt'  on  his  examination  in 
chief  denies  the  existence  of  a  written 
contract,  the  defendant  may  interpose,  and 
give  evidence  upon  a  colhiteral  issue, 
whether  there  was  a  written  contract,  be- 
fore the  plaintitf  is  allowed  to  give  evi- 
dence of  its  terms.  Cox  c.  Couveless,  2 
F.  &  F.  139.] 

2  2  Tidd's  Pr.  804 ;  Calvert  v.  Flower, 

7  C.  &  P.  386.  [So  in  Alaine.  Blake  v. 
Kuss,  33  Maine,  360.] 

3  1  Paine  &  Duer's  Pr.  484;  "Withers 
V.  Gillespy,  7  S.  &  R.  14.  The  English 
rule  was  adopted  in  Jordan  v.  Wilkins,  2 
Wasli.  C.  C.  R.  482,  484,  n. ;  Randel  v. 
Chesapeake  &  Del.  Can.  Co.  1  Harringt. 
E.  233,  284 ;  Penobscot  Boom  Corp.  v. 
Lamson,  4  Shepl.  224 ;  Anderson  v.  Root, 

8  Sm.  &  M.  362 ;  Commonwealth  v.  Da- 
vidson, 1  Cush.  33.  [A  party  who  pro- 
duces a  paper  at  the  trial  on  the  call  of 
the  adverse  party  is  not  entitled  to  read 
such  paper  in  evidence  for  himself,  after 
the  party  calling  for  it  has  inspected  it, 
and  declined  to  read  it,  miless  it  ajipear  to 
be    the    identical   instrument   called    for. 

/Reed  v.  Anderson,  [*  12  Cush.  481 ;  Clark 
Iv.  Fletcher,  1  Allen,  53.  But  in  New  Hamp- 
shire, in  a  recent  case,  Austin  ('.Thompson, 

45  N.  Hamp. ,  the  question  is   thor- 

oughlj'  reviewed,  and  the  English  rule, 
stated  above,  denied,  and  it  seems  to  us 
the  reason  of  the  thing  is  in  favor  of  the 
rule  here  maintained.] 

•*  The  Roman  Civil  Law  on  the  sub- 
ject of  alterations  agrees  in  the  main  with 
the  common  law ;  l^ut  the  latter,  in  this 
as  in  other  cases,  has  greatly  tlie  advan- 
tage, in  its  facility  of  adaptation  to  the 
actual  state  of  the  facts.    The  general  rule 


is  the  same,  in  both  codes.  Rasa  scrip- 
tura  falsa  pnusumitur,  et  tanquam  falsa 
rejicitur;  prajsertim  quando  rasura  facta 
est  per  eum,  qui  utitur  instrumento  raso. 
jNIascard.  vol.  4 ;  Concl.  1261,  n.  1,  3. 
But  if  immaterial,  or  free  from  suspicion, 
an  altei'ation  or  rasure  does  not  vitiate. 
Si  rasiu-a  non  sit  in  loco  substantiali,  et 
suspecto,  non  reddit  falsum  instrumentum. 
Id.  n.  y.  If  it  api>eared,  on  its  tiice,  to 
be  the  autography  of  the  notary  who  drew 
the  instrument,  that  is,  a  contempora- 
neous act,  it  was  by  some  deemeil  valid  ; 
quamvis  scriptura  sit  abrasa  in  parte  sub- 
stantiali, sed  ita  bene  rescripta,  ut  aperte 
dignoscatur,  id  manu  ejnsdem  Notarii  fu- 
isse.  Id.  n.  14.  But  others  contended, 
that  this  was  not  sufficient  to  remove  all 
suspicion,  and  render  the  instrument 
valid,  unless  the  alteration  was  mentioned 
and  explained  at  the  end  of  the  instru- 
ment. Si  Notarius  erravit  in  scriptura, 
ita  ut  oporteat  aliquid  radere  et  rcpouere, 
vel  facere  aliquam  lineam  in  niargine,  de- 
bet, ad  evitandam  suspicionem,  in  fine 
scriptura*  ac  chirograplii  continnando  fa- 
cere  mentionem,  qualiter  ipse  abrasit  tale 
verbum,  in  tali  lineii,  vel  tacit  talem  line- 
am  in  margine.  Id.  n.  16.  But,  in  the 
absence  of  all  evidence  to  the  contrary,  it 
seems  that  alterations  were  presumed  to 
be  contemporaneous  with  the  execution  of 
the  instrument.  In  dubio  autein  hujus- 
modi  abrasiones  seu  cancellationes  \n-js- 
sumuntur  semper  factaj  tempore  concep- 
tionis  scripturaj,  antequam  absoluta  fuerit. 
Id.  n.  18.  If  the  suspicion,  arising  from 
the  alteration  when  considered  by  itself, 
were  removed,  by  taking  it  in  coimection 
with  the  context,  it  was  sufficient ;  —  cum 
verba  antecedentia  et  sequeutia  demon- 


G04 


LAW    OP   EVIDENCE. 


[part   III. 


wrilteu  iiistniiuriiL  detracts  from  its  credit,  and  readers  it  suspi- 
cious ;  and  this  suspicion  the  party,  claiming  under  it,  is  ordi- 
narily held  bound  to  remove.^  If  the  alteration  is  noted  in  the 
attestation  clause,  as  having  been  made  before  the  execution  of 
the  instrument,  it  is  sufficiently  accounted  for,  and  the  instrument 
is  relieved  from  that  suspicion.  And  if  it  appears  in  the  same 
luindwriting  and  ink  with  the  body  of  the  instrument,  it  may 
suffice.  So,  if  the  alteration  is  against  the  interest  of  the  party 
deriving  title  under  the  instrument,  as,  if  it  be  a  bond  or  note, 
altered  to  a  less  sum,  the  law  docs  not  so  far  presume  that  it  was 
improperly  made,  as  to  throw  on  him  the  burden  of  accounting 
for  it.2  And,  generally  speaking,  if  nothing  appears  to  the  con- 
trary, the  alteration  will  be  presumed  to  be  contemporaneous  with 
the  execution  of  the  histrument.^     But  if  any  oround  of  susuicion 


strant  nccessario  ita  esse  Icgendum,  ut  in 
rasura  scriimirtc  leperitur.  Id.  n.  I'J. 
The  instrument  mijilit  also  be  lield  j^ood 
at  the  discretion  of  the  judge,  if  the  origi- 
nal reading  were  still  api)arent  —  si  sensus 
rectus  percipi  potest  —  notwitlistanding  tlie 
rasure;  l<l.n.  20;  oriftlie  part  erased  could 
be  ascertained  by  other  instruments  ;  — si 
jHjr  alias  scripturas  i)ars  abrasa  declarari 
possit.  111.  n.  '21.  If  the  instrument  were 
produced  in  court  by  the  adverse  party, 
tipon  legal  compulsion,  no  alterations. 
apparent  upon  it  were  permitted  to  ope- 
rate to  the  prejudice  of  the  instrument, 
against  the  party  calling  for  its  produc- 
tion. Si  scriptura,  ac  instrumentum  repe- 
riatur  penes  adversarium,  et  jude.x  eum 
cogit  tale  instrumentum  e.xhibere  in  judi- 
cio ;  quamvis  enim  eo  casu  scriptura  sit 
abrasa  in  parte  substantiali ;  tamen  non 
vitiata,  nee  falsa  redditur  contra  me,  et  in 
inei  ])r:ejudlcium;  imo,  ei  pnestatiu- tides 
in  omnibus,  in  (juibus  ex  ilia  potest  sumi 
sensus ;  prtesumitur  enim  adversarium 
dolose  abrasisse.  Abrasio,  sive  cancella- 
tio,  praisumitur  facta  ab  eo  penes  quein 
repetltur  instrumentem.  Id.  n.  22,  23. 
And  if  a  written  contract  or  act  were  exe- 
cuted in  duplicate,  an  alteration  of  one  of 
the  originais  was  held  not  to  operate  to 
tlie  injury  of  the  other.  Si  de  eadem  re, 
et  eodem  contractu,  fuerint  confectai  dua3 
scriptunc,  t-ive  instrumenta,  ai)rasio  in  uno 
liarum  scripliuarum,  etiam  substantiali 
loco  est  alterum  non  vitiat.     Id.  n.  21. 

1  I'erk.  Conv.  55;  llenman  r.  Dickin- 
son, 5  Hing.  iH'.i,  184  ;  Knight  v.  Clem- 
ents, 8  All.  &  Kl.  215  ;  Newcombe  v.  Pres- 
brey,  H  Met.  40(J.  Hut  where  a  farm  was 
devised  from  year  to  year  by  parol,  and 
afterwards  an  agreement  was  signed,  con- 


taining stipulations  as  to  the  mode  of  till- 
age, for  breach  of  which  an  action  was 
brouglit,  and,  on  producing  the  agree- 
ment, it  appeared  that  the  term  of  years 
had  been  written  seven,  but  altered  to 
fourteen  ;  it  was  held  that  this  alteration, 
beiruj  iiiiniaterial  to  the  parol  contract,  need 
not'be  explained  by  the  [jlaintirt'.  Earl  of 
Falmouth  v.  Roberts,  'J  M.  &  W.  469. 
See  further,  Cariss  v.  Tattershall,  2  Man. 
&  Gr.  8'JO ;  Cliffitrd  v.  Parker,  Id.  909. 

-  Bailev  v.  Tavlor,  11  Conn.  E.  531; 
Coulson  v'.  Walton,  9  Pet.  789. 

3  Trowell  v.  Castle,  1  Keb.  22;  Fitz- 
gerald V.  Fauconberg,  Fitzg.  207,  213  ;  Bai- 
ley V.  Tavlor,  11  Conn.  R.  531,  584; 
Gooch  V.  Bryant,  1  Shepl.  386,  390 ;  Crab- 
tree  V.  Clark,  7  Shepl.  337  ;  Vanliorne  v. 
Dorrance,  2  Dall.  306.  And  see  PuUen 
V.  Hutchinson,  12  Shepl.  249,  254  ;  Wick- 
off' s  Appeal,  3  Am.  Law  .Jour.  493,  503, 
N.  s.  in  Morris  v.  Vanderen,  1  Dall.  67, 
and  Prevost  v.  Gratz,  1  Pet.  C.  C.  R.  / 
364,  369,  it  was  lield,  that  an  alteration  • 
should  be  presumed  to  have  been  made  / 
after  the  execution  of  the  instrument ;  but  ^^ 
this  has  been  overnded  in  the  United 
States,  as  contrary  to  tlic  principle  of  the 
law,  whicli  never  presmnes  wrong.  The 
Yeporter's  marginal  notes  in  Burgoyne  v. 
Showier,  1  Rob.  Eccl.  R.  5,  and  Cooper  v. 
Brockett,  4  Mof)re,  P.  C.  C.  419,  state  the 
broad  proposition,  that  alterati(ms  in  a 
will,  not  accounted  for,  arc  /iriiud  Jiicie  pre- 
sumed to  have  been  made  after  its  execu- 
tion. But,  on  exiunination  of  these  cases, 
they  are  found  to  turn  entirely  on  the  pro- 
visions of  the  Statute  of  Wills,  1  Vict.  c.  26, 
§  21,  which  directs  that  all  alteraticms, 
made  betbre  the  execution  of  the  will,  be 
noted  in  a  memorandum  upon   the  will. 


CHAP.  VI.] 


PRIVATE   WRITINGS. 


605 


is  apparent  upon  the  face  of  the  instrumeiita  the  law  presumes 
notliingj  but  leaves  the  question  of  the  time  when  it  was  done  as 
AN'cil  as  that  of  the  person  by  whom,  and  the  intent  with  which  the 
alteration  was  made,  as  matters  of  fact,  to  be  ultimately  found  by 
the  jury,  upon  proofs  to  be  adduced  by  the  party  offering  the 
instrument  in  evidence.^ 


anrl  attested  by  the  testator  and  witnesses. 
If  this  direction  is  not  coniphed  witli,  it 
may  well  he  presumed  that  tlie  alterations 
were  subsequently  made.  And  so  it  was 
held,  upon  the  language  of  that  statute, 


Co.  V.  Shrewsbury  Cluirch,  2  N.  J.  424. 
In  an  action  to  foreclose  a  mortgage,  the 
burden  of  proof  is  on  the  plaintifi'to  show  /y 
tliat   the   interlineations,   alterations,  and  ^fZ-^/ 

,   _^  __.  o-o-  --    ,     erasures  therein  were  made  before,  or  at    .'^^ 

and   of  the  statute   of  frauds   respecting  » the  time  of  its  execution,  and  there  is  no  /"f^  (^ 
wills,  in  Doe  v.  Palmer,  15  Jur.  8b6,  839;     presumption  that  they  w ere"  s 6 _^ade,,^ 
in  which  the  case  of  Cooper  i-.  "      '    "     .t-t-^'.-  i       .,i       .   ^       n      ■■->._ 


Brockett 
was  cited.by  Lord  Campbell,  and  ap]iroved, 
upon  the  ground  of  the  statute.  The  ap- 
plication of  this  rule  to  deeds  was  denied 
in  Doe  v.  Catamore,  15  Jur.  728  ;  5  Eng. 
Law  &  Rep.  ol'J,  [and  cases  cited  in  note] ; 
where  it  was  held,  that  if  the  contrary  be 
not  proved,  the  interlineation  in  a  deed  is 
to  be  presumed  to  have  been  made  at  the 
time  of  its  execution.  And  see  Co.  Lit. 
225  b,  and  note  by  Butler ;  Best  on  Pre- 
sumptions, §  75. 

In  the  case  of  alterations  in  a  will,  it 
was  held,  in  Doe  v.  Palmer,  supra,  that 
the  declarations  of  the  testator  were  ad- 
missible, to  rebut  the  presumption  of 
fraud  in  the  alterations.  [In  the  absence 
of  evidence  or  circumstances  from  which 
an  inference  can  be  drawn  as  to  the  time 
when  it  was  made,  every  alteration  of 
an  instrument  will  be  presumed  to  have 
been  made  after  its  execution.  Burnham 
V.  Ayre,  20  Law  Rep.  (10  n.  s.)  339.] 

^  The  cases  on  this  subject  are  not  in 
perfect  harmony ;  but  they  are  undei'- 
stood  fully  to  support  the  doctrine  in  the 
text.  They  all  agree,  that  where  any 
suspicion  is  raised  as  to  the  genuineness 
of  an  altered  instrument,  whether  it  be 
apparent  upon  inspection,  or  made  so  by 
extraneous  evidence,  the  party  producing 
the  instrument,  and  claiming  under  it,  is 
bound  to  remove  the  suspicion  by  ac- 
counting for  the  alteration.  It  is  also 
generally  agreed,  that  inasmuch  as  fraud 
is  never  to  be  presumed,  therefore,  if  no 
particular  circumstances  of  suspicion  at- 
tach to  an  altered  instrument,  the  altera- 
tion is  to  be  presumed  innocent,  or  made 
prior  to  its  execution.  Gooch  v.  Bryant, 
1  Shepl.  386;  Crabtree  v.  Clark,  7  Shepl. 
337 ;  AVickes  v.  Caulk,  5  PI.  &  J.  41 ;  Gil- 
let  V.  Sweat,  1  Gilm.  475 ;  Doe  v.  Cata- 
more, 15  Jur.  728 ;  5  Eng.  Law  &  Eq.  R. 
349  [and  cases  cited  in  note]  ;  Co.  Lit. 
225  b,  note  by  Butler ;  [Boothby  v.  Stan- 
ley, 34  Maine,  115;  North  River  Meadow 


thaTlhey  vvere  made  without  fraud....  Ely 
v:  Ely,T9'Traw~I?ep."(l)  N.  s.)  697.  See 
also  Wilde  v.  Armsby,  6  Cush.  314 ; 
Acker  v.  Ledyard,  8  Barb.  514 ;  Jordan  v. 
Stewart,  23  Penn.  St.  R.  244 ;  Hunting- 
ton V.  Finch,  3  Ohio  (n.  s.),  445.]  In 
Jackson  v.  Osborn,  2  Wend.  555,  it  was 
held,  that  the  party  claiming  imder  a 
deed  was  bound  to  account  for  the  altera- 
tions in  it,  and  that  no  presumption  was 
to  be  made  in  its  favor ;  but  in  Bailey  v. 
Taylor,  11  Conn.  531,  it  was  held,  that 
nothing  was  to  be  presumed,  either  way, 
but  the  question  was  to  be  submitted 
freely  to  the  jury. 

But  an  exception  to  this  rule  of  the 
presumption  of  innocence  seems  to  be  ad- 
mitted in  the  case  of  negotiable  paper ;  it 
having  been  held,  that  the  party  pro- 
ducing and  claiming  under  the  paper  is 
bound  to  explain  every  apparent  and 
material  alteration,  the  operation  of  which; 
would  be  in  his  own  favor.  Knight  r. 
Clements,  8  Ad.  &  El.  215;  Cliflhrd  v. 
Parker,  2  M.  &  G.  909 ;  Sinapson  v.  Stack- 
house,  9  Barr,  186 ;  McJNIickeu  v.  Beau- 
champ,  2  Miller,  Louis.  R.  290.  See  also 
Henman  v.  Dickinson,  5  Bing.  183 ; 
Bishop  V.  Chambre,  3  C.  &  P.  55 ; 
Humphreys  v.  Guillow,  13  N.  Hamp.  385; 
Hills  V.  Barnes,  11  N.  Hamp.  395;  Taylor 
V.  Mosely,  6  C.  &  P.  273;  Whitfield  r. 
Collingwood,  1  Car.  &  Ivir.  325 ;  Davis 
V.  Carhsle,  6  Ala.  707 ;  Walters  v.  Short, 
5  Gilm.  252 ;  Cariss  v.  Tattershall,  2  M.  & 
G.  890.  But  in  Davis  v.  Jenney,  1  Met. 
221,  it  was  held  that  the  burden  of  proof 
was  on  the  defendant.  [Clark  v.  Eck- 
stein, 22  Penn.  State  R.  507 ;  Paine  v. 
pjdsell,  19  lb.  178.  See  also  Agawani 
Bank  v.  Sears,  4  Gray,  95,  97.] 

Another  exception  has  been  allowed, 
where  the  instrument  is,  by  the  rules  of 
practice,  to  be  received  as  genuine,  unless 
its  genuineness  is  denied  on  oath  by  the 
part)',  and  he  does  so ;  for  his  oath  is 
deemed  sufficient  to  destroy  the  presump- 


n 


rCJt- 


51* 


606 


LAW    OF    EVIDENCE. 


[part    III. 


§  oG.3.  Thougli  the  cflect  of  the  alteration  of  a  legal  instrument 
is  generally  discussed  with  reference  to  deeds,  yet  the  principle  is 
ap'pUcahh  to  all  other  instruments.  The  early  decisions  were  chiefly 
upon  deeds,  beca\ise  almost  all  written  engagements  were  anciently 
in  that  form;  but  they  establish  tlie  general  proposition,  that 
written  instruments,  which  are  altered,  in  the  legal  sense  of  that 
term,  as  hereafter  explained,  are  therebi/  made  void}  The  grounds^, ^ 
of  this  doctrine  are  twofold.     The  first  is  that  of  public  policy,  to'  V - 


j.revent  fraud,  by  not  permitting  a  man  to  take  the  chance  of 
connnitting  a  fraud  without  running  any  risk  of  losing  by  the 
event,  when  it  is  detected.^'  Tlie  other  is,  to  insure  the  identity 
of  the  instrument,  and  prevent  the  substitution  of  another,  without 
the  privity  of  the  party  coilccrned.^    The  instrument  derives  its 


tion  of  innocence  in  regard  to  the  altera- 
tion, and  to  place  tlie  instrument  in  the 
condition  of  a  suspected  paper.  AValtcrs 
V.  Siiort,  5  Gilm.  252. 

It  is  also  clear,  tliat  it  is  for  the  court 
to  determine,  in  the  first  instance,  whether 
the  alteration  is  so  far  accounted  for,  as  tp 
perniit  the  instrument  to  be  read  in  evi- 
dence to  the  jury,  wlio  are  the  ultimate 
judges  of  tlie  fact.  Tillou  v.  The  CUn- 
ton,  >5cc.  Ins.  Co.  7  Barb.  5G4  ;  Ross  v. 
(iould,  5  Greenl.  204.-  [But  see  Clark  v. 
Eckstein,  22  I'enn.  State  R.  507.]  But 
whetiier,  in  the  absence  of  all  other  evi- 
dence, the  jury  may  determine  the  time 
and  character  of  the  alteration  from  in- 
spection alone  is  not  universally  agreed. 
In  some  cases  they  have  been  permitted 
to  do  so.  Bailey  v.  Taylor,  11  Conn. 
531 ;  Gooch  v.  Bryant,  1  Sliepl.  386 ; 
Crabtree  v.  Clark,  7  Sliepl.  337  ;  Doe  v. 
Catjimore,  15  Jur.  728,  5  Eng.  Law  &  Eq. 
R.  31'J ;  Vanliorne  r.  Dorrance,  2  Dall.  3()tj ; 
[Brintup  c.  Mitchell,  17  Geo.  558.]  And 
see  Wickes  v.  Caulk,  5  H.  &  J.  41 ;  Puilen 
V.  Sliaw,  3  Dev.  238 ;  in  which  last  case 
it  was  belli,  that  where  the  alteration  was 
apparently  against  the  interest  of  the 
liolder  of  the  instrument,  it  should  be 
presumed  to  have  Jjeen  made  prior  to  its 
execution.  But  in  some  other  ciises,  the 
courts  have  retjuired  the  exhibition  of 
some  adminicular  proof,  being  of  o[)inion 
that  the  jury  ought  not  to  be  left  to  con- 
jecture al.ine,  ujxjn  mere  inspection  of 
the  instrument.  See  Knight  c.  Clements, 
Clifford  V.  I'arker,  and  Cariss  v.  Tatter- 
shall,  supra. 

(Jtlier  cases,  in  accordance  with  the 
rules  aboTe  stated,  are  tlie  following : 
Cumberland  Bank  r.  Hall,  1  Ilalst.  215; 
Sayre  v.  Iteynolds,  2  South,  737; 
Mathews  v.  Coalter,  'J  Mis.  7U5;  llerrick 


^•^ 


Malin,  22  Wend.  388 ;  Barrington  v.  Bank 
of   Washington,  14  S.   &  R.  405;  Horry 
District  v.  Hanion,  1  N.  &  McC.  554 ;  Haf- 
felfinger  v.  Shutz,  10  S.  &  R.  44;    Bea- 
man    r.  Russell;  20  Verm.  205.      In  this 
last  case,  the  subject  of  alterations  is  very  >v^ 
fully     considered,     and     the     authorities 
classed  and  examined  in   the  able  judg-     "' 
ment   delivered   by  Hall,   J.     Where   an     ;^ 
alteration   is   apparent,  it  has  been  held,\  ^ 
that  the  party  impeaching  the  instrument     -' 
may  prove  collateral  lacts   of  a  general 
character,   such    as    alterations    in   other 
notes,  which  formed  the  consideration  for 
the  note  in  question,  tending  to  show  that 
the  alteration  in  it  was  frautlulent.     Ran 
kin  V.  Black  well,  2  .Johns.  Cas.  198.  v  , 

1  Masters  v.  Miller,  4  T.  R.  329,  830 ;  \ 
Newell  V.  Mayberry,  3  Leigh,  R.  250.>-' 
[A  probate  bond  executed  by  a  principal 
and  two  sureties  was  altered  by  the  judge 
of  probate,  with  the  consent  of  the  prin- 
cipal, but  without  the  knowledge  of  the 
sureties,  by  increasing  the  penal  sura,  and 
was  then  executed  by  two  additional  sure- 
ties who  did  not  know  of  the  alteration, 
and  was  approved  by  the  judge  of  pro- 
bate, and  it  was  held  that  the  bond, 
though  binding  on  the  principal,  was  void 
as  to  all  the  sureties.  Howe  v.  Reabody, 
2  Gray,  550.  See  Taylor'  v.  Johnson,  17 
Geo.  521;  riiillips  v.  ,Wells,  2  Sneed, 
154;  Ledford  v.  Vandyke,  Busbee,  Law, 
480 ;  Burchfield  v.  Mooi-e,  25  Eng.  Law  & 
Eq.  123.]  / 

2  ]\Iasters  v.  MiUgr,  4  T.  R.  329,  per 
Ld.  Kenyon.  .' 

'^  Sanderson  v.  Symonds,  1  B.  &  B. 
430,  per  Dallas,  C.  J.  It  is  on  this  ground 
that  the  alteration  of  a  deed,  in  an  imtna- 
terial  part,  is  sometimes  fatal,  where  its 
identity  is  put  in  issue  by  the  pleadings, 
every  jiart  of  the  writing  being  then  ma- 


a^^T^ir 


CHAP.  VI,] 


PRIVATE   WPJTINGS. 


607 


legal  virtue  from  its  being  the  sole  repository  of  the  agreement 
of  the  parties,  solemnly  adopted  as  such,  and  attested  by  the 
signature  of  the  party  engaging  to  perform  it.  Any  alteration, 
therefore,  which  causes  it  to  speak  a  language  different  in  legal 
effect  from  that  which  it  originally  spake,  is  a  material  alteration. 

§  566.  A_^distinction,  however,  is^Jp^^be  observed^  between  the 
aliemtioMU-^'^.thQ  spoliation  of  an  instrument,  as  to .  tjie  Iftgai.  coa- 
sequences.  An  alteration  is  an  act  done  upon  the  instrument,  by 
which  its  meaning  or  language  is  changed.  If  what  is  written 
upon  or  erased  from  the  instrument  has  no  tendency  to  produce 
this  result,  or  to  mislead  any  person,  it  is  not  an  alteration.  The 
term  is,  at  this  day,  usually  applied  to  the  act  of  the  party  entitled 
under  the  deed  or  instrument,  and  imports  some  fraud  or  improper 
design  on  his  part,  to  change  its  effect.  But  the  act  of  a  stranger, 
without  the  participation  of  the  party  interested,  is  a,  mere  spolia^ 
tion,  or  mutilation  of  the  instrument,  not  chan^iu^  its  legal_op.era- 
tion,  so  long  as  the  original  writing  remains  legible,  and,  if  it  be 
a  deed,  any  trace  remains  of  the  seal.  If,  by  the  uniawfuf  act 
of  a  stranger,  the  instrument  is  mutilated  or  defaced,  so  that  its 
identity  is  gone,  the  law  regards  the  act,  so  far  as  the  rights  of  the 
parties  to  the  instrument  are  concerned,  merely  as  an  accidental 
destruction  of  primary  evidence,  compelling  a  resort  to  that  which 
is  secondary ;  and,  in  such  case,  the  mutilated  portion  may  be 
admitted  as  secondary  evidence  of  so  much  of  the  original  instru- 
ment. Thus,  if  it  be  a  deed,  and  the  party  would  plead  it,  it  can- 
not be  pleaded  with  a  profert,  but  the  want  of  profert  must  be 
excused  by  an  allegation  that  the  deed,  meaning  its  legal  identity 
as  a  deed,  has  been  accidentally,  and  without  the  fault  of  the 
party,  destroyed.^     And  whether  it  be  a  deed  or  other  instrument, 


terial  to  the  identity.     See  supra,  §§  58, 
69;  Hunt  v.  Adams,  6  Mass.  521. 

1  Powers  V.  Ware,  2  Pick.  451 ;  Read 
V.  Brookman,  3  T.  R.  152  ;  Morrill  v.  Otis, 
12  N.  Hamp.  R.  466.  Tlie  necessity  of 
some  fi'aiidulent  intent,  carried  home  to 
the  party  claiming  under  the  instrument, 
in  order  to  render  the  alteration  fatal,  was 
strongly  insisted  on  by  Buller,  J.,  in  Mas- 
ters V.  Miller,  4  T.  R.  334,  835.  And,  on 
tliis  ground,  at  least  tacitly  assumed,  the 
old  cases,  to  the  etfect  that  an  alteration 
of  a  deed  by  a  stranger,  in  a  material 
part,  avoids  the  deed,  have  been  over- 
ruled. In  the  following  cases,  the  altera- 
tion of  a  writing,  without  fraudulent  in- 


tent, has  been  treated  as  a  merely  accident- 
al spoliation.  Henfree  v.  Bromley,  6  East, 
809 ;  Cutts,  in  error,  v.  United  States,  1 
Gall.  69  ;  United  States  v.  Spalding,  2  ]Ma- 
son,  478 ;  Rees  v.  Overbaugh,  6  Cowen, 
746;  Lewis  v.  Payn,  8  Cowen,  71 ;  Jackson 
V.  Malin,  15  Johns.  297,  per  Piatt,  J. ;  'Sich- 
ols  V.  Johnson,  10  Conn.  192;  Marshall  r. 
Gougler,  10  S.  &  R.  164;  Palm.  403; 
AVilkinson  u.  Johnson,  8  B.  &  C.  428; 
Raper  v.  Birkbeck,  15  East,  17  ;  [Boyd  v. 
McConnell,  10  Humph.  68 ;  Lee  r.  Alex- 
ander, 9  B.  ]Mon.  25.]  The  old  doctrine, 
that  every  material  alteration  of  a  deed, 
even  by  a  stranger,  and  without  privity 
of   either  party,   avoided  the  deed,  was 


(308  LAW   OF    EVIDENCE.  [PART  III. 

its  ori"iual  tenor  must  be  substantially  shown,  and  the  alteration 
or  nuitilation  accounted  for,  in  the  same  manner  as  if  it  were 

lost. 

§  567.  In  considering  the  effect  of  alterations  made  ly  the  party 
hiniai'If,  who  holds  the  instrument,  a  further  distinction  is  to  be 
observed  between  the  insertion  of  those  words  ivhich  the  law  tvould 
supply,  and  those  of  a  different  character.  If  the  law  would  have 
su}ti)lied  the  words  which  were  omitted,  and  were  afterwards 
inserted  bv  tin;  i)arty,  it  has  been  repeatedly  held,  that  even  his 
own  insertion  of  them  will  not  vitiate  the  instrument ;  for  the 
assent  of  the  obliger  will,  in  such  cases,  be  presumed.  It  is  not 
an  alteration  in  the  sense  of  the  law,  avoiding  the  instrument ; 
although,  if  it  be  a  deed,  and  to  be  set  forth  in  hcec  verba,  it  should 
be  recited  as  it  was  originally  written.^ 

§  568.  It  has  been  strongly  doubted,  whether  an  immaterial 
alteration  in  any  matter,  though  made  by  the  obligee  himself,  will 
avoid  the  instrument,  provided  it  be  done  innocently,  and  to  no 
injurious  purpose. ^  But  if  the  alteration  be  fraudulently  made,  by 
the  party  claiming  under  the  instrument,  it  does  not  seem  im- 
portant whether  it  be  in  a  material  or  an  immaterial  part ;  for,  in 
cither  case,  he  has  brought  himself  under  the  operation  of  the  rule 
established  for  the  prevention  of  fraud  ;  and,  having  fraudulently 
dt'sti-oycd  the  identity  of  the  instrument,  ho  must  take  the  peril 
of  all  the  consequences.-^     But  here,  also,  a  further  distinction  is 

stronrcly  condemiieil  by  Story,  J.,  in  Unit-  indorsed  by  <'i  surety.     It  was  afterwards 

ed  States  v.  Spaldinp,  sii/mj,  as  repugnant  altered  by  tbe  payee  and  maker,  without 

to  common  sense  and  justice,  as  inflicting  the  knowledge  of  the  surety,  so  as  to  be 

on  an  innocent  party  all  the  losses  occa-  payable  to  the  same  partnership  by  a  dif- 

sioned   by   mistake,    by  accident,  by  tlie  ferent  name.     In  an  action  on  the  note  by 

wrongful    acts   of   third   persons,   or    by  the  payee  against  the  sinx'ty,  it  was  held, 

tiie   jirovidence   of  Heaven;    and    which  that   the   alteration  was  immaterial,  and 

ought   to  liavc  the  suijport   of  unbroken  that  it  did  not  affect  the  validity  of  the 

authority  before  a  court  of  law  was  bound  note.     Arnold  v.  Jones,  2  K.  I.  i345.     The 

to   surrender   its  judgment   to   what   de-  making   a  note   payable   at  a   jjarticular 

served   no  better  name  than  a  technical  place  is  a  materi.al  alteration.     Burchfield 

quibble.     [Goodfellow  v.  Inslee,  1  Beas-  w.  Moore,  25  Eng.  Law  &  Eq.  K.  1:23.     See 

ley,  :!•">•').]  also  Warrington  r.  Early,  22  lb.  208.] 

'  Hunt  i\  Adams,  6  Mass.  -519,  522;  "*  If  an  obligee  procure  a  person,  who 

Waugii  r.  Russell,  o  Taunt.  707 ;  Paget  v.  was  not  present  at  the  execution  of  the 

Paget,  3  Chan.  Rep.  410;  Zouch  v.  Clay,  bond,  to  sign  his   name   as   an   attesting 

1  Ventr.  1H5 ;  Smith  v.  Crooker,  5  Mass.  witness,    this   is  jirhnd  facie  evidence  of 

5^8;  Hale  r.  Huss,  1  Greenl.  384 ;  Knapp  fraud,   anil    voids   the   bond.     Adams    i: 

V.    Mallby,    1:'.    Wend.    587;    Brown    v.  Frye,  3  Met.  103.     But  it  is  competent  for 

Pinkham,  18  Pick.  172.  the  obligee  to  rebut  the  inference  of  fraud, 

-  Hatch   V.    Hatch,   9   Mass.    311,  per  by  proof  that  the  act  was   done  without 

Sewall,   J.  ;    Smith   v.   Dunbar,   8    Pick,  any   fraudulent   purpose ;    in   which  case 

24(i;    [IJeed    v.    Kemp,    l(j    111.   445.     A  the   bond  will   not   be   thereby   rendered 

promissory  note  was  made  payable  to  a  void.     Ibid.     And  see  Homer  v.  Wallis, 

partnership  \mder  one  name,  and  was  so  11  Mass.  309;  Smith  v.  Dunham,  8  Pick. 


CHAP.  YL]  private   WRITINGS.  609 

to  be  observed,  between  deeds  of  conveyance  and  covenants ;  and 
also  between  covenants  or  agreements  executed,  and  tbose  wbich 
are  still  executory.  For  if  the  grantee  of  land  alter  or  destroy  his 
title-deed,  yet  his  title  to  the  land  is  not  gone.  It  passed  to  him 
by  the  deed ;  the  deed  has  performed  its  office,  as  an  instrument 
of  conveyance ;  and  its  continued  existence  is  not  necessary  to  the 
continuance  of  title  in  the  grantee  ;  but  the  estate  remains  in  him, 
until  it  has  passed  to  another  by  some  mode  of  conveyance  recog- 
nized by  the  law.^  The  same  principle  applies  to  contracts  exe- 
cuted, in  regard  to  the  acts  done  under  them.  If  the  estate  lies  in 
grant,  and  cannot  exist  without  deed,  it  is  said  that  any  alteration, 
by  the  party  claiming  the  estate,  will  avoid  the  deed  as  to  him, 
and  that  therefore  the  estate  itself,  as  well  as  all  remedy  upon  the 
deed,  will  be  utterly  gone.^  But  whether  it  be  a  deed  conveying 
real  estate  or  not,  it  seems  well  settled  that  any  alteration  in  the 
instrument,  made  by  the  grantee  or  obligee,  if  it  be  made  with  a 
fraudulent  design,  and  do  not  consist  in  the  insertion  of  words 
which  the  law  would  supply,  is  fatal  to  the  instrument,  as  the 
foundation  of  any  remedy  at  law,  upon  the  covenants  or  undertak- 
ings contained  in  it.^  And,  in  such  case,  it  seems  that  the  party 
will  not  be  permitted  to  prove  the  covenant  or  promise,  by  other 
evidence.^     But  where  there  are  several  parties  to  an  indenture, 

246.    But  tlus  latter  point  was   decided  part  of  a  bond  given  by  a  tnistee  to  show 

otherwise  in  Marshall  v.  Gougler,  10  S.  &  the  interest  oiaceMiu  que  trust,  made  with- 

rl.  164.    And  where  the  holder  of  a  bond  out  the  knowledge  of  the  trustee,  by  a 

)r  a  note  under  seal  procured  a  person  to  party  beneficially  interested  therein,  will 

dter  the  date,  for  the  purpose  of  correct-  destroy  the  bond,  but  will  not  operate  to 

ng  a  mistake  in  the  year  and  making  it  destroy  an  estate   which   existed  before, 

conform  to  the  truth,  this   was   held  to  and   independently   of,   the  bond.      Wil- 

ivoid  the  bond.     Miller  v.  Gilleland,  s.  c.  liams  v.  Van  Tuyl,  2  Ohio,  n.  s.  336.] 
Pa.  1 ;    1   Am.   Law   Eeg.    672.    Lowrie         ^  Moore   v.   Salter,   3  Bulstr.  79,  per 

and  Woodward,  Js.  dissenting.  Coke,  C.  J. ;    Lewis  v.  Payn,  8   Cowen, 

1  Hatch  V.  Hatch,  9  Mass.  307  ;  Dr.  71 ;  supra,  §  265. 
Leyfield's  case,  10  Co.  88;  Bolton  v.  Car-  ^  Ibid  ;  Davidson  v.  Cooper,  11  M.  & 
lisle,  2  H.  Bl.  359 ;  Davis  v.  Spooner,  3  W.  778  ;  Jackson  v.  Gould,  7  Wend.  364 ; 
Pick.  284;  Barrett  v.  Thorndike,  1  Hatch  t?.  Hatch,  9  Mass.  307 ;  Barrett  i-'. 
Greenl.  73 ;  Lewis  v.  Payn,  8  Cowen,  71 ;  Thorndike,  1  Greenl.  73  ;  Withers  v.  At- 
Jackson  v.  Gould,  7  Wend.  364 ;  Beck-  kinson,  1  Watts,  236 ;  Arrison  v.  Harm- 
row's  case,  Hetl.  138 ;  [Tibeau  v.  Tibeau,  stead,  2  Barr,  191 ;  Whitmer  v.  Frye,  10 
19  Mis.  78.]  Whether  the  deed  may  still  Jlissouri,  E.  348  ;  Mollett  v.  Wacker- 
be  read  by  the  party,  as  evidence  of  title,  barth,  5  M.  Gr.  &  Sc.  181 ;  Agriculturist 
is  not  agi-eed.  That  it  may  be  read,  see  Co.  v.  Fitzgerald,  15  Jur.  489 ;  4  Eng.  L. 
Doe  V.  Hirst,  3  Stark.  R.  60;   Lewis  v.  &.  Eq.  R.  211. 

Payn,  8  Cowen,  17 ;  Jackson  v.  Gould,  7         "^  Martindale  v.   FoUett,   1   N.   Hamp. 

Wend.  864.     That  it  may  not,  see  Babb  95;  Newell  v.  Mayberry,  3  Leigh,  R.  250; 

V.  Clemson,  10  S.  &  R.  419 ;  Withers  v.  Blade  v.  Nolan,  12  Wend.  173 ;  Arrison  v. 

Atkinson,  1  Watts,  236 ;  Chesley  f.  Frost,  Harmstead,  2  Barr,  191.     The  strictness 

1  N.  Hamp.  145 ;  Newell  v.  Mayberry,  3  of  the  English  rule,  that  every  alteration 

Leigh,    R.    250 ;    Bliss   v.   Mclntyre,    18  of  a  bill  of  exchange,  or  promissory  note. 

Verm.  466.     [An  alteration  in  a  material  even  by  consent  of  the  parties,  renders  it 


(■;10  LAW   OF   EVIDENCE.  [PART   III. 

some  of  wliom  have  executed  it,  and  in  the  progress  of  the  trans- 
action it  is  altered  as  to  those  who  have  not  signed  it,  without  the 
knowledge  of  those  who  have,  but  yet  in  a  part  not  at  all  affecting 
the  latter,  and  then  is  executed  by  the  rcsidtic,  it  is  good  as  to 

all.i 

§  5G8rt.  In  all  these  cases  of  alterations,  it  is  further  to  l3e  re- 
marked, that  they  are  supposed  to  have  been  made  without  the 
consent  of  the  other  party.  For,  if  the  alteration  is  made  by  con- 
sent of  parties,  such  as  by  filling  up  of  blanks,  or  the  like,  it  is 
valid.3  But  here,  also,  a  distinction  has  been  taken  between  the 
insertion  of  matter,  essential  to  the  existence  and  operation  of  the 
instrument  as  a  deed,  and  that  which  is  not  essential  to  its  opera- 
tion. Accordingly  it  has  been  held  that  an  instrument,  which, 
when  formally  executed,  was  deficient  in  some  material  part,  so 
as  to  be  incapable  of  any  operation  at  all,  and  was  no  deed,  could 
not  afterwards  become  a  deed  by  being  completed  and  delivered  by 
a  stranger,  in  the  absence  of  the  party  who  executed  it,  and  unau- 
thorized by  an  instrument  under  seal.^  Yet  this  rule,  again,  has 
its  exceptions,  in  divers  cases,  such  as  powers  of  attorney  to  trans- 
fer stock,^  navy  bills,^  custom-house  bonds,^  appeal  bonds,'^  bail 
bonds,*^  and  the  like,  which  have  been  held  good,  though  executed 
in  blank  and  afterwards  fdled  up  by  parol  authority  only.^ 

utterly  void,  has  particular  reference  to         *  Commercial    Bank    of    Buffalo    v. 

the  stamp  act  of  1  Aim.  stat.  2,  c.   22.  Kortwright,  22  Wend.  348. 

Chittv  on  Bills,  pp.  207-214.  ^  Per  Wilson,  J.,  iii  Masters  v.  Miller, 

1  Doe  V.  Bingham,  4  B.  &  Aid.  672,  1  Anstr.  229. 
ti75,  per  Bayley,  J. ;  Hibhlewhite  v.  Me-         ^  22  Wend.  366. 
Moriiie,  G  M.  &  W.  208,  20'J.  ^  Ex  parte  Decker,  6  Cowen,  59 ;  Ex 

-  Markham  v  Gonaston,  Cro.  El.  626 ;  paHe  Kerwin,  8  Cowen,  118. 
Moor,  547 ;  Zoucli  v.  Clay,  1  Ventr.  185  ;         »  Hale  v.  Russ,  1  Greenl.  334  ;  Gordon 

2  Lev.  35.     So,  where  a  power  of  attor-  v.  Jeffreys,  2  Leigh,  R.  410 ;  Vanhook  v. 

ney  was  sent  to  B,  with  his  christian  name  Barrett,  4  Dev.  Law   R.   272.     But  see 

in  blank,  which  lie  filled  by  inserting  it,  HaiTison  v.  Tiernans,  1  Randolph,  R.  177; 

this  was  held  valid.     I'^agleton  v.  Gutter-  Gilbert  v.  Anthony,  1  Yerger,  69. 
idge,  II  M.  &  W.  468.     This  consent  may         ^  In  Texira  v.  Evans,  cited  1  Anstr. 

Ikj  implied.     Hale  i'.  Russ,  1  Greenl.  34;  228,  where  one  executed  a  bond  in  blank. 

Smith  V.  Crooker,  5  Mass.  538 ;  19  Johns,  and  sent  it  into  the  money-market  to  raise 

3U6,  per   Kent,   C. ;    [I'lank-Road  Co.  v.  a  loan  ui)on,  and  it  was  negotiated,  and 

Wetsel,  21  Barb.  56 ;  Uatclitt"  v.  I'lanters'  filled   up   by  parol  authority  only.  Lord 

Bank.  2  Sneed,  425;  Sbelton  v.  Deering,  Alansfield  held  it  a  good  bond.     This  de- 

10  B.    Mon.  405.      Where  the  date  of  a  cision  was  questioned  by  Mr.  Preston  in 

note  umler  seal  was  altered  from  1836  to  his  edition  of  Shep.  Touchst.  p.  68,  and  it 

1838,  at  the  recjuest  of  the  payee,  and  in  was  expressly  overruled  in  IIil)blewliite  v. 

the  presence  of  tiie  surety,  but  without  McMorine,  6  M.  &  W.  215.     It   is   also 

his  assent,  the  note  was  avoided  as  to  the  contradicted  by  McKee  v.   Hicks,  2  Dev. 

surely.     Miller  v.  Gilleland,  19  Penn.  St.  Law  R.  379,   and  some  other  American 

R.  119.]  cases.    But  it  was  confirmed  in  Wiley  m. 

■*  Hibblewhite   v.   McMorine,  6   M.   &  Moor,  17   S.  &R.  438;  Knapp  w.  Maltby, 

W.  '2y)^),  216.  13  Wend.  587;  Commercial  Bank  of  Buf- 


CHAP.  VL] 


PEIVATE   WRITINGS. 


611 


§  569.  The  instrument,  being  thus  produced  and  freed  from 
suspicion,  must  be  proved  Inj  the  subscribing  tviftiesses,  if  there  be 
any,  or  at  least  by  one  of  them.i     Various  reasons  liave  been 


talo  V.  Kortwright,  22  Wend.  348 ;  Board- 
man  V.  Gore,  1  Stewart,  xUab.  R.  517 ; 
Duncan  v.  Hodges,  4  McCord,  239 ;  and 
in  several  other  cases  the  same  docti-ine 
has  been  recognized.  In  the  United 
States  V.  Nelson,  2  Brockenbrough,  R.  64, 
74,  75,  which  was  the  case  of  a  paymas- 
ter's bond,  executed  in  blank  and  after- 
wards filled  up,  Chief-Justice  ]\Iarshall, 
before  whom  it  was  tried,  felt  bound  by 
the  weight  of  authority,  to  decide  against 
the  bond ;  but  expressed  his  opinion,  that 
in  principle  it  was  valid,  and  his  belief 
that  liis  j  udgment  would  be  reversed  in 
the  Supreme  Coiu-t  of  the  United  States  ; 
but  the  cause  was  not  carried  farther. 
Instruments  executed  in  this  manner 
have  become  very  common,  and  the  au- 
thorities as  to  their  validity  are  distress- 
ingly in  conflict.  But  upon  the  principle 
adopted  in  Hudson  v.  Kevett,  5  Bing.  368, 
there  is  very  little  difficulty  in  holding 
such  instruments  valid,  and  thus  giving 
fidl  effect  to  the  actual  intentions  of  the 
jjarties,  without  the  violation  of  any  rule 
of  law.  In  that  case,  the  defendant  exe- 
cuted and  delivered  a  deed,  conveying  his 
property  to  trustees,  to  sell  for  the  benefit 
of  his  creditors,  the  particulars  of  whose 
demands  were  stated  in  the  deed ;  but  a 
blank  was  left  for  one  of  the  principal 
debts,  the  exact  amount  of  which  was 
subsequently  ascertained  and  inserted  in 
the  deed,  in  the  grantor's  presence,  and 
with  his  assent,  by  the  attorney  who  had 
prepared  the  deed  and  had  it  in  his  posses- 
sion, he  being  one  of  the  trustees.  The 
defendant  afterwards  recognized  the  deed 
as  valid,  in  various  transactions.  It  was 
held  that  the  deed  was  not  intended  to  be 
a  complete  and  perfect  deed,  until  all  the 
blanks  were  filled,  and  that  the  act  of 
the  grantor,  in  assenting  to  the  fill- 
ing of  the  blank,  amounted  to  a  de- 
livery of  the  deed,  thus  completed.  No 
formality,  either  of  words  or  action,  is 
prescribed  by  tlie^^  law  as^sentiai^o  de- 
llx^iff^'^or  IS  ir'maferiarii'ow'^ "or  wlien 
the  deed  came  into  the  hands  of  the 
grantee.  Delivery,  in  the  legal  sense, 
consists  in  the  transfer  of  the  possession 
and  dominion  ;  and  whenever  the  grantor 
assents  to  the  possession  of  the  deed  by 
the  grantee,  as  an  insti'ument  of  title, 
then,  and  not  until  then,  the  delivery  is 
complete.  The  possession  of  the  instru- 
m.ent  by  the  grantee  may  be  simultaneous 
with  this  act  of  the  grantor's  mind,  or  it 
may  have  been  long  before  ;  but  it  is  tliis 


assent  of  the  grantor  which  changes  tiie 
cliaracter  of  that  prior  possession,  and  im- 
parts validity  to  the  deed.  Mr.  Preston 
observes  that  "  all  cases  of  this  sort  de- 
pend on  the  inquiry  whether  the  intended 
grantor  has  given  sanction  to  the  instru- 
ment, so  as  to  make  it  conclusive!}'  his 
deed."  3  Preston  on  Abstracts,  p.  64. 
And  see  Parker  v.  Hill,  8  Met.  447 ;  Hope 
V.  Harman,  11  Jur.  1097 ;  post,  vol.  2,  § 
297.  The  same  effect  was  given  to  clear 
and  unequivocal  acts  of  assent  en  pais,  by 
a  feme  mortgagor,  after  the  death  of  her 
husband,  as  amounting  to  a  redeliveifr 
of  a  deed  of  mortgage,  executed  by  her 
while  a  feme  covert.  Goodright  v. 
Straphan,  Cowp.  201,  204 ;  Shep. 
Touchst.  by  Preston,  p.  58.  "  The  general 
rule,"  said  Mr.  Justice  Johnson,  in  de- 
livering the  judgment  of  the  court,  in 
Duncan  v.  Hodges,  "  i^  that  if  a  blank  be 
signed,  sealed,  and  delivered,  and  after- 
wards written,  it  is  no  deed;  and  the 
obvious  reason  is,  that  as  there  was  notic- 
ing of  substance  contained  in  it,  nothing 
could  pass  by  it.  But  the  rule  was  never 
intended  to  prescribe  to  the  grantor  tlie 
order  of  time,  in  which  the  several  parts 
of  a  deed  should  be  written.  A  thing  to 
be  granted,  a  person  to  whom,  and  the 
sealing  and  delivery,  are  some  of  those 
which  are  necessary,  and  the  whole  is 
consummated  by  the  delivery ;  and  if  the 
grantor  should  think  proper  to  reverse 
this  order,  in  the  manner  of  execution, 
but  in  the  end  makes  it  perfect  before  de- 
livery, it  is  a  good  deed.  See  4  McCord, 
R.  239,  240.  Whenever,  therefore,  a  deed 
is  materially  altered,  by  consent  of  the 
parties,  after  its  formal  execution,  the 
grantor  or  obligor  assents  that  the  grantee 
or  obligee  slialT  retain  it  in  its  altered  and 
completed  form,  as  an  instrument  of  title  ; 
and  this  assent  amounts  to  a  dehvery  or 
redelivery,  as  the  case  may  require,  and 
warrants  tlie  jury  in  finding  accordingly. 
Such  plainly  was  the  opinion  of  the 
learned  judges  in  Hudson  v.  Revett,  as 
stated  by  Best,  C.  J.,  in  5  Bing.  388,  389  ; 
and  further  expounded  in  West  v.  Stew- 
ard, 14  M.  &  W.  47.  See  also  Hartley  r. 
]Manson,  4  'M.  &  G.  172;  Story  on  Bail- 
ments, §  55.  [Filling  in  the  date  of  a 
warrant  of  attorney  after  execution  is  not 
such  an  alteration  as  will  avoid  the  in- 
strument. Keane  v.  Smallbone,  33  Eng. 
Law  &  Eq.  198.] 

1  A  written   instrument,  not  attested 
by  a  subscribing  witness,  is   sufficiently 


012 


LAW   OF   EVIDENCE. 


[part  III. 


assi'^iicil  for  this  rule ;  but  that  upon  which  it  seems  best  founded 
is,  that  a  fact  may  be  known  to  the  sul)scribing  witness,  not 
witiiin  the  knowledge  or  recollection  of  the  obligor ;  and  that  he  is 
entitled  to  avail  himself  of  all  the  knowledge  of  the  subscribing 
witness,  relative  to  the  transaction.^  The  party,  to  whose  execu- 
tion he  is  a  witness,  is  considered  as  mvoking  him,  as  the  person 
to  whom  he  refers,  to  prove  what  passed  at  the  time  of  attesta- 


provc'd  to  authorize  its  introduction,  by 
competent  i)root'  tliat  the  sii;nature  of  the 
IXTson,  whose  name  is  unilersi.yned,  is 
gi-Muine.  Tiie  party  producing  it  is  not 
reipiired  to  proceed  further  upon  a  mere 
sugijostion  of  a  false  date  when  there  are 
no  inihcations  of  tiilsity  found  upon  tiie 
jiaper,  and  prove,  that  it  was  actually 
made  on  the  day  of  the  date.  After 
proof  that  the  signature  is  genuine,  the 
law  presumes  that  the  instrument  in  all 
its  parts  is  genuine  also,  when  there  are 
no  indications  to  be  found  upon  it  to 
rebut  such  a  presumption.  See  Pullen 
c.  Hutchinson,  12  Sliepl.  254,  per  Shep- 
ley.  J. 

In  regard  to  instruments  duly  attested, 
the  rule  in  the  text  is  ap[)lied  where  the  in- 
strument is  the  foundation  of  the  party's 
claim,  or  he  is  privy  to  it,  or  where  it  pur- 
ports to  be  executed  by  his  adversary ; 
Ijut  not  where  it  is  wholly  inter  alios,  un- 
der whom  neither  party  can  claim  or 
deduce  any  right,  title,  or  interest  to  him- 
self. Ayres  v.  Hewett,  1  Applet.  28G,  per 
Whitman,  C.  J. 

In  Missouri,  two  witnesses  are  required 
to  prove  the  signature  of  a  deceased  sub- 
scriliing  witness  to  a  dcr'd.  Eev.  Stat. 
Ibi J,  cii.  32,  §  22.  See  supra,  §  2G0,  note. 
In  iinjiiiia,  every  written  instrument 
is  presumed  to  be  genuine,  if  the  party 
purporting  to  have  signed  it  be  living,  un- 
less he  will  deny  the  signature,  on  oath. 
Ixov.  Stat.  lai'J,  ch.  'J8,  §  85.  So,  in 
Illiiwis.  Linn  r.  IJuckinghara,  1  Scam. 
45  L  And  see  Missouri,  l\ev.  Stat.  1835, 
p.  403,  §§  ly,  ly.  Te,Tas,  Hartley's  Dig. 
§  741.  Delaware,  Rev.  Stat.  1852,  ch. 
lOtJ,  §  6. 

In  .Vo«/A  Carolina,  the  signature  to  a 
bond  or  note  may  be  proved  by  any  other 
person,  without  calling  the  subscribing 
witness ;  unless  the  deiendant  will  swear 
that  it  is  not  his  signature,  or  that  of  his 
testator  or  intestate,  if  the  case  be  such. 
Stat,  at  Large,  vol.  5,  p.  434.  And  for- 
eign deeds,  bonds,  &c.,  attested  to  have 
been  proved  on  oath  l)L'fore  a  notary  or  oth- 
er magistrate  qualitied  thiTetbr,  are  admis- 
sible in  eviilence  without  proof  by  tlie  sub- 
scribing witnesses;  provided  the  courts  of 


the  foreign  state  receive  similar  evidence 
from  this  state.  Id.  vol.  3,  p.  285 ;  vol.  5, 
p.  45. 

In  Virginia,  foreign  deeds  or  powers 
of  attorney,  &c.,  duly  acknowledged,  so 
as  to  be  admitted  to  record  by  the  laws 
of  that  state ;  also,  policies,  charter- 
parties,  and  copies  of  record  or  of  regis- 
ters of  marriages  and  births,  attested  hy  a 
notary,  to  be  made,  entered,  or  kept 
according  to  the  law  of  the  place,  are 
admissible  in  evidence  in  the  courts  of 
that  state,  without  further  proof.  Rev. 
Stat.  1849,  ch.  121,  §  3  ;  Id.  ch.-176,  §  16. 
A  similar  rule,  in  substance,  is  enacted  in 
Mississippi.  Hutchinson's  Dig.  ch.  60, 
art.  2.  And  see  infra,  §  573,  note.  [And 
where  the  instrument  which  the  plaintiff 
offered  as  part  of  his  case  was  a  lease  not 
under  seal,  executed  on  the  part  of  the 
lessor  by  an  attorney,  in  the  presence  of  an 
attesting  witness,  it  was  held,  that  the  tes- 
timony of  the  attorne}^  was  inadmissible  to 
prove  the  execution  of  the  lease,  without 
first  calling  the  attesting  witness,  or  ac- 
counting for  his  absence.  "  The  person 
whose  signature  appeared  to  it  as  attorney 
of  the  supposeil  lessor  could  not  affect  the 
rights  of  tlie  defendants,  who  ol)iected  to 
it,  by  way  of  admission  or  confession,  for 
he  never  represented,  or  was  intrusted  by, 
the  defendants  for  any  purpose.  His 
handwriting  was  secondary  evidence  only, 
anil  could  not  be  proved,  until  the  plaintiff 
had  proved  that  the  testimony  of  the  at- 
testing witness  could  not  be  obtained. 
The  attorney,  therefore,  stood  in  the  same 
position  as  any  other  person,  not  a  sub- 
scribing witness,  who  might  have  hap- 
pened to  be  present  at  the  execution  of 
the  instrument.  The  evidence  was  in- 
competent, and  rightly  rejected."  By 
Shaw,  C.  J.  Barry  v.  Ryan,  4  Gray,  523, 
525.  Where  one  witness  testifies  that  the 
other  witness  and  liimself  were  present 
and  saw  the  execution  of  a  deed,  it  is  not 
necessary  to  call  such  other  witness. 
Melcher  v.  Flanders,  40  N.  11.  139.] 

1  Per  Le  Blanc,  J.,  in  Call  v.  Dunning, 
4  East,  64 ;  Manners  v.  Postan,  4  Esp. 
240,  per  Ld.  Alvanley,  C.  J. ;  3  Preston 
on  Abstracts  of  Title,  p.  73. 


CHAP.  YI.] 


PRIVATE   WEITINGS. 


613 


tion.i  The  rule,  though  originally  framed  in  regard  to  deeds,  is  now 
extended  to  every  species  of  writing,  attested  by  a  witness .^  Such 
being  the  principle  of  the  rule,  its  application  has  been  held  indis- 
pensable, even  where  it  was  proved  that  the  obligor  had  admitted 
that  he  had  executed  the  bond ;  ^  and  though  the  admission  were 
made  in  answer  to  a  bill  of  discovery.* 

§  569a.  A  suhscrihing  toitness  is  one  who  was  present  when  the 
instrument  was  executed,  and  who,  at  that  time,  at  the  request  or 
with  the  assent  of  the  party,  subscribed  his  name  to  it,  as  a  wit- 
ness of  the  execution.  If  his  name  is  signed  not  by  himself,  Ijut 
by  the  party,  it  is  no  attestation.  Neither  is  it  such,  if,  though 
present  at  the  execution,  he  did  not  subscribe  the  instrument  at 
that  time,  but  did  it  afterwards,  and  without  request,  or  by  the 
fraudulent  procurement  of  the  other  party.  But  it  is  not  necessary 
that  he  should  have  actually  seen  the  party  sign,  or  have  been 
present  at  the  very  moment  of  signing ;  for  if  he  is  called  in  im- 
mediately afterwards,  and  the  party  acknowledges  his  signature  to 
the  witness,  and  requests  him  to  attest  it,  this  will  be  deeemed  part 
of  the  transaction,  and  therefore  a  sufficient  attestation.^ 


1  Cussons  V.  Skinner,  11  M.  &  W.  168, 
per  Ld.  Abinger ;  HoUenback  v.  Tleming, 
6  mil,  N.Y.  Rep.  303. 

2  Doe  V.  Durnford,  2  M.  &  S.  62; 
which  was  a  notice  to  quit.  So,  of  a  war- 
rant to  distrain.  Higgs  v.  Dixon,  2  Stark. 
R.  180.  A  receipt.  Heckert  v.  Haine,  6 
Binn.  16  ;  Wishart  v.  Downey,  15  S.  & 
E.  77 ;  Mahan  v.  McGrady,  5  S.  &  R. 
314. 

3  Abbott  V.  Plumbe,  1  Doug.  216,  re- 
ferred to  by  Lawrence,  J.,  in  7  T.  R.  267, 
and  again  in  2  East,  187,  and  confirmed  by 
Lord  EUenborough,  as  an  inexorable  rule, 
in  Rex  r.  Harring worth,  4  M.  &  S.  353. 
The  admission  of  the  party  may  be  given 
in  evidence ;  but  the  witness  must  also 
be  produced,  if  to  be  had.  This  rule  was 
broken  in  upon,  in  the  case  of  the  admit- 
ted execution  of  a  promissory  note,  in 
Hall  V.  Plielps,  2  Johns.  451 ;  but  the  rule 
was  afterwards  recognized  as  binding  in 
the  case  of  a  deed,  in  Fox  v.  Reil,  3 
Johns.  477,  and  confirmed  in  Henry  v. 
Bishop,  2  Wend.  575.  [  *  The  rule  re- 
quiring the  production  of  the  subscribing 
witness,  to  prove  the  paper,  is  most  in- 
flexible. Story  V.  Lovett,  1  E.  D.  Smith, 
153.  And  the  fact  that  such  witness  is 
the  sole  justice  of  the  court  will  not  dis- 
pense with  it.  Jones  v.  Phelps,  5  Mich. 
218.1 


*  Call  V.  Dunning,  4  East,  43.  But 
see  Bowles  v.  Langworthy,  5  T.  R.  366. 
So,  in  order  to  prove  the  admission  of 
a  debt,  by  the  medium  of  an  entry  in  a 
schedule  filed  by  the  defendant  in  the 
Insolvent-Debtors'  Com-t,  it  was  held 
necessary  to  prove  his  signature  by  the 
attesting  witness,  although  the  document 
had  been  acted  upon  by  that  court. 
Streeter  v.  Bartlett,  ^M.  G.  &  Sc.  562. 
In  Maryland,  the  ruleMn  the  text  is  abro- 
gated by  the  statute  of  1825,  ch.  120. 
[The  English  statute  rendering  parties  to 
suits  competent  witnesses  has  not  changed 
the  rule.  Whyman  v.  Garth,  20  Eng. 
Law  &  Eq.  R.  359.  And  the  same  has 
been  held  in  Massachusetts.  Brighani  v. 
Palmer,  3  Allen,  450.] 

5  HoUenback  v.  Fleming,  6  Hill,  N.  Y. 
Rep.  303;  Cussons  v.  Skinner,  11  M.  & 
W.  168;  Ledgard  v.  Thompson,  Id.  41, 
per  Parke,  B.  Si  \testes\  in  confectione 
chartfE  pnesentes  non  fuerint,  siifficit  si  post- 
modum,  in  pnesentia  donatoris  et  donatorii 
fuerint  recitate  et  concessa.  Bracton,  b.  2, 
c.  16,  §  12,  fol.  38,  a ;  Fleta,  I.  3,  c.  14, 
§  13,  p.  200.  And  see  Bra  eke  tt  v.  Mount- 
fort,  2  Fairf.  115.  See  further,  on  signa- 
ture and  attestation,  post,  vol.  2,  tit.  Wills, 
§§  674,  676,  678. 


52 


!:14 


LAW    OF    EVIDENCE. 


[part 


III. 


:^ 


§  570.  To  this  rule,  requiring  the  production  of  the  suljscribing 
witnesses,  there  are  several  dcmes  of  ezcejjtions.  The  first  is,  where 
the  instrument  is  tJiirty  years  old;  in  which  case,  as  we  have  here- 
tofore seen,i  jt  is  said  to  prove  itself,  the  subscribing  witnesses 
Ijeing  presumed  to  be  dead,  and  other  proof  being  presumed  to 
l)c  beyond  the  reach  of  the  party.     But  such  documents  must  be 
free  from  just  grounds  of  suspicion,  and  must  come  from  the  prop- 
er custody ,2  or  have  been  acted  uiX)n,  so  as  to  afford  some  cor- 
roborative proof  of  their  genuineness.^     And,  in  this  case,  it  is  not 
necessary  to  call  the  subscribing  witnesses,  though  they  be  living.* 
'This  exception  is  co-extensive  with  the  rule,  applying  to  ancient 
iwritings.  of  every  description,  provided  they  have  been  brought 
^  from  the  proper  custody  and  place ;  for  the  finding  them  in  such 
I  a  custody  and  place  is  a  presumption  that  they  were  honestly  and 
I  fairly  obtained,  and  preserved  for  use,  and  are  free  from  suspicion 
of  dishonesty.^     But  whether  it  extends  to  the  seal  of  a  private 
I  corporation,  has  been  doubted,  for  such  a  case   does   not  seem 
clearly  to  be  within  the  principle  of  the  exception.^ 


1  Supra,  §  21,  and  cases  there  cited. 
See  also  Doe  v.  Davis,  10  Ad.  &  El.  314, 
N.  s. ;  Crane  v.  Marshall,  4  Shepl.  27; 
Green  v.  Chelsea,  24  Pick.  71.  From  the 
dictum  of  Parker,  C.  J.,  in  Emerson  v. 
Tolman,  4  Pick.  162,  it  has  been  interred 
that  tlie  subscribing  witnesses  must  be 
]n-()duced,  if  living,  though  the  deed  be 
Uiure  than  thirty  years  old.  But  the  case 
of  Jackson  v.  Blanshan,  3  Johns.  292, 
which  is  there  referred  to,  contains  no 
such  doctrine.  The' question  in  the  latter 
case,  which  was  the  case  of  a  will,  was, 
whether  the  thirty  years  should  be  com- 
puted from  the  date  of  the  will,  or  from 
the  time  of  the  testator's  death,  and  the 
court  held  that  it  should  be  computed 
from  the  time  of  his  death.  But  on  this 
point  Spencer,  J.,  differed  from  the  rest  of 
the  court ;  and  his  opinion,  whicli  seems 
more  consistent  with  the  principle  of  the 
rule,  is  fully  sustained  by  Doe  c.  Deakin, 
3  C.  &.  P.  4U2;  Doe  v.  WoUey,  8  B.  &  C. 
22 ;  McKcnire  v.  Prazer,  'J  Ves.  5 ;  Gough 
r.  Gough,  4  T.  R.  707,  n.  See  Adams  on 
Eject,  p.  200.  And  it  was  accordingly  so 
decided  in  Man  v.  llicketts,  7  Beavan,  93. 

-  Snjim,  §  142.  And  see  Slater  v. 
Hodgson,  9  Ad.  &  Kl.  727,  n.  s.  [An  an- 
cient book  kept  among  tlie  records  of  the 
town  and  coming  therefrom,  purporting  to 
be  the  selectmen's  book  of  accounts,  with 
the  treasury  of  the  town,  is  admissible  in 
evidence  of  the  fticts  therein  stated.  Bos- 
ton I'.  Weymouth,  4  Cush.  538,  542.     See 


also  Whitehouse  v.  Bickford,  9  Foster, 
471 ;  Adams  v.  Stanyan,  4  Foster,  405.] 

3  See  supra,  §§  21,  142,  and  cases  there 
cited;  Doe  d.  Edgett  v.  Stiles,  1  Kerr's 
Rep.  (New  Br.)  338.  Mr.  Evans  thinks 
that  the  antiquity  of  tlie  deed  is  alone  suf- 
ficient to  entitle  it  to  be  read ;  and  that 
the  other  circumstances  only  go  to  its 
eifect  in  evidence ;  2  Poth.  Obi.  App.  xvi. 
sect.  5,  p.  149.  See  also  Doe  v.  Burdett, 
4  Ad.  &  El.  1,  19 ;  Brett  v.  Beales,  1  M.  & 
INIalk.  416,  418 ;  Jackson  v.  Larroway,  8 
Johns.  Cas.  283.  In  some  cases,  proof  of 
possession,  under  the  deed  or  will,  seems 
to  have  been  deemed  indisi^ensable ;  but 
the  principle  pervachng  them  all  is  that  of 
corroboration  merely;  that  is,  that  some 
evidence  shall  be  offered,  auxiliary  to  the 
apparent  antiquity  of  the  instrument,  to 
raise  a  sufficient  presumption  in  its  favor. 
As  to  this  point,  see  sujtra,  §  144,  note. 

*  Marsh  v.  Colnett,  2  Esp.  G65  ;  Doc  v. 
Burdett,  4  Ad.  &  El.  1, 19  ;  Doe  v.  Deakin, 
3  C.  &  P.  402 ;  Jackson  v.  Christman,  4 
Wend.  277,  282,  283 ;  Doe  v.  Wolley,  8 
B.  &  C.  22 ;  Fetherley  v.  Waggoner,  11 
Wend.  603  ;  .si//);(/,  142. 

5  12  Viu.  Abr.  tit.  Evidence,  A.  b.  5, 
pi.  7,  cited  by  Ld.  Ellenborough,  in  Roe 
V.  Rawlins,  7  East,  291 ;  Gov.  &c.  of  Chel- 
sea Waterworks  V.  Cowper,  1  Esi>.  R.  275; 
Forbes  v.  Wale,  1  W.  Bl.  532;  Winne  v. 
Tyrwhitt,  4  B.  &  Aid.  376. 

6  Rex  V.  Bathwick,  2  B.  &  Ad.  639, 
648. 


CHAP.  VI.]  PRIVATE   WRITINGS.  6l5 

§  571.  A  second  exception  to  this  rule  is  allowed,  where  the 
instrument  is  produced  hy  the  adverse  party,  pursuant  to  notice, 
the  ])artj  producing  it  claiming  an  interest  under  the  instrument. 
In  this  case,  the  party  producing  the  instrument  is  not  permitted 
to  call  on  the  other  for  proof  of  its  execution ;  for,  by  claiming  an 
interest  under  the  instrument,  he  has  admitted  its  execution.^ 
The  same  principle  is  applied  where  both  parties  claim  similar 
interests,  under  the  same  deed ;  in  which  case,  the  fact  of  such 
claim  may  be  shown  by  parol.^  So,  where' both  parties  claim  under 
the  same  ancestor,  his  title-deed,  being  equally  presumable  to  be 
in  the  possession  of  either,  may  be  proved  by  a  copy  from  the  reg- 
istry.^ But  it  seems  that  the  interest  claimed  in  these  cases  must 
Ije  of  an  abiding  nature.  Therefore,  where  the  defendant  would 
show  that  he  was  a  partner  with  the  plaintiff,  and,  in  proof  thereof, 
called  on  the  plaintiff  to  produce  a  written  personal  contract,  made 
between  them  both,  as  partners  of  the  one  part,  and  a  third  person 
of  the  other  part,  for  labor  which  had  been  performed,  which  was 
produced  accordingly,  the  defendant  was  still  held  bound  to  prove  its 
execution.*  The  interest,  also,  which  is  claimed  under  the  instru- 
ment produced  on  notice,  must,  in  order  to  dispense  with  this  rule, 
be  a7i  interest  claimed  in  the  same  cause.  Therefore,  where  in  an 
action  by  an  agent  agamst  his  principal,  for  his  commission  due 

1  Pearce  v.  Hooper,  3  Taunt.  60 ;  Carr  this  ground,  admissible,  it  has  been  held 
V.  Burdiss,  1  C.  M.  &  R.  784,  785 ;  Orr  v.  that  the  original  might  be  read  in  evi- 
Jlorice,  3  Br.  &  Bing.  139  ;  Bradshaw  v.  dence,  without  proof  of  its  formal  execu- 
Bennett,  1  M.  &  Rob.  143.  In  assumpsit  tion.  Knox  v.  Silloway,  1  Eairf.  201. 
by  a  servant  against  his  master,  for  breach  This  practice,  however,  has  been  restrict- 
of  a  written  contract  of  service,  the  agree-  ed  to  instruments  wliich  are  by  law  re- 
ment  being  produced  imder  notice,  proof  quired  to  be  registered,  and  to  transmis- 
of  it  by  the  attesting  witness  was  held  un-  sions  of  title  inter  vivos ;  for  if  the  party 
necessary.  Bell  v.  Chaytor,  1  Car.  &  claims  by  descent  from  a  grantee,  it  has 
Ivirw.  16'2 ;  5  C.  &  P.  48.  been  held  that  he  must  produce  the  deed 

2  Doe  V.  Wilkins,  4  Ad.  &  El.  86 ;  5  to  his  ancestor,  in  the  same  manner  as  the 
Nev.  &  M.  434,  s.  c. ;  Knight  v.  Martin,  1  ancestor  himself  would  be  obliged  to  do. 
Gow,  R.  26.  Kelsey    v.    Hanmer,    18    Conn.    R.    311. 

^  Burghardt  v.  Turner,  12  Pick.  534.  "Where  proof  of  title  had  been  made  by  a 

It  being  the  general  practice,  in  the  United  copy  from  the  registry  of  an  officer's  levy 

States,  for  the  grantor  to  retain  his  own  of  an  execution,  and  the  adverse  party 

title-deeds,  instead  of  delivering  them  over  thereupon  produced  the  original  return,  in 

to  the  grantee,  the  grantee  is  not  held  which  were  material  alterations,  it  was 

bound  to  produce  them ;  but  the  person  held  that  this  did  not  affect  the  admissi- 

making  title  to  lands  is,  in  general,  per-  bility  of  tlie  copy  in  evidence,  and  that  the 

mitted  to  read  certified  copies,  from  the  burden  of  explaining  and  accounting  for 

registry,  of  all  deeds  and  instruments  un-  the  alterations  in  the  original  did  not  rest 

der  whicli  lie  claims,  and  to  which  he  is  on  the  party  producing  the  copy.     Wilbur 

not  himself  a  party,  and  of  which  he  is  not  v.  Wilbur,  13  Met.  405 ;  [ante,  §  5G1,  and 

supposed  to  have  the  control.     Scanlan  v.  notes.] 

Wright,  13  Pick.  523;  Woodman  v.  Cool-         ■*  Collins  v.  Bayntum,  1  Ad.  &  El.  n.  s. 

brotli,  7  Greenl.  181 ;  Loomis  v.  Bedel,  11  117. 
N.  Hamp.  74.    And  where  a  copy  is,  on 


61(3  LAW   OF  EVIDENCE.  [PART  III. 

for  ni-ocurin2:  liim  an  apprentice,  the  indenture  of  apprenticeship 
was  ])roduccd  by  the  defendant  on  notice ;  it  was  held  that  the 
plaintiff  was  still  hound  to  prove  its  execution  by  the  subscribing 
witness ;  and  that,  having  been  nonsuited  for  want  of  this  evi- 
dence, he  was  not  entitled  to  a  new  trial  on  the  ground  of  surprise, 
though  he  was  not  previously  aware  that  there  was  a  subscribing 
witness,  it  not  appearing  that  he  had  made  any  inquiry  on  the  sub- 
ject.^ So,  where  the  instrument  was  taken  by  the  party  producing 
it,  in  the  course  of  his  official  duty,  as,  for  example,  a  bail  bond, 
taken  by  the  sheriff,  and  produced  by  him  on  notice,  its  due  exe- 
cntion 'mW  jy^'inid  fccie  lie  }>resumcd.-  F^iibjoct  to  thcso  oxception_Sjj_ 
the  ti'eneral  rule  is,  that  whci-o  the  part}'  pi'Dilurhi,:  ;:ii  lu.-t  runicnt 
(111  ii.ii'ci.'  is  not  a  pari}'  io  it  and  claims  no,  benelii'ial  iiit„erg§i. 
under  it,  llie^  party  calling  for  its  ])roduction,  and  otlcring  it  in 
^evidence,  JJiust^.J.^ilO'^'G  its  cxeciitiou.-^ 

^  ."m-.  a  third  class  of  exceptions  to  this  rule  arises  from  the 
circumstances  of  the  witnesses  themselves,  the  party,  either  from 
2)hysical  or  legal  obstacles,  being  unable  to  adduce  them.  Thus, 
if  the  witness  is  proved  or  presumed  to  be  dead ;  ^  or  cannot  be 
found  after  diligent  inquiry ;  ^  or,  is  resident  beyond  the  sea ;  ^  or, 
is  out  of  the  jurisdiction  of  the  court ; "'  or,  is  a  fictitious  person, 
whose  name  has  been  placed  upon  the  deed  by  the  party  who 
made  it ;  ^  or,  if  the  instrument  is  lost,  and  the  name  of  the  sub- 


1  Rearden  v.  ]\Iinter,  5  M.  &  Gr.  204.  Griffith,  6  Moore,  538 ;  Austin  v.  Rumsey, 

2  Scott    V.    Waithman,    3    Stark.    R.  2  C.  &  K.  736. 

168.  6  Anon.  12  Mod.  607 ;  Barnes  v.  Trom- 

3  Betts  V.  Badger,  12  Johns.  223 ;  Jack-  powsky,  7  T.  R.  266. 

son  V.  Kingsley,  17  Jolnis.  158.  "^  Hohiies  v.  Pontin,  Peake's  Cas.  99; 

■*  Anon.  12  Mod.  607 ;  Barnes  v.  Trom-  Banks  v.  Farquharson,  1  Dick.  167 ;  Coo- 

powskj^  7  T.  R.  265 ;  Adams  v.  Kerr,  1  per  v.  Marsden,  1  Esp.  1 ;  Prince  v.  I51ack- 

B.  &  P.  360 ;    Banks  v.  Farquharson,  1  burn,  2  East,  250 ;  Sluby  v.  Champlin,  4 

Dick.  167  ;    Mott  v.  Doughty,   1   Johns.  Johns.  461 ;  Dudley  v.  Sumner,  5  Mass. 

Cas.  230 ;  Dudley  u.  Sumner,  5  Mass.  463.  444;    Homer  v.   Walhs,   11   Mass.   309; 

Tiiat  the  witness  is  sick,  even  tliough  de-  Cook  v.  Woodrow,  5  Cranch,  13 ;  Baker  v. 

spaired  of,  is  not  sufficient.     Harrison  v.  Blunt,  2  Hayw.  404;  Hodnett  v.  Forman, 

Blailes,  8  Campb.  457.     See  supra,  §  272,  1  Stark.  R.  90 ;  Glubb  v.  Edwards,  2  M. 

n.,  as  to  the  mode  of  proving  the  attesta-  &   Rob.   300;     Engles    v.    Bruington,   4 

tion  of  a  marksman.  Yeates,  345 ;   Wiley  v.  Bean,  1   Gilman, 

"  Coghlan  v.  Williamson,  1  Doug.  93;  302;  Dunbar  w.  Marden,  13  N.  Hamp.  311. 

Cunliflfe  v.  Sefton,  2  East,   183  ;    Call  v.  If  the  witness  has  set  out  to  leave  the  ju- 

Dunning,  5  Esp.  16  ;  4  East,  53 ;  Crosby  risdiction  by  sea,  but  the  ship  has  been 

V.  Piercy,  1  Taunt.  364 ;  Jones  v.  Brink-  beaten  back,  he  is  still  considered  absent, 

ley,  1  Hayw.  20;   Anon.   12  Mod.  607;  Ward  v.  Wells,  1  Taunt.  461.     See  also 

Warden  v.  Fermor,  2  Campb.  282 ;  Jack-  Emery  v.  Twomblv,  5  Shepl.  65 ;  [Teall 

son  ('.Burton,  11  Joims.  64;  Mills  I'.  Twist,  v.  Van  Wyck,  10  "Barb.   376;    Foote  v. 

8  Jolins.  121 ;  Parker  v.  Haskins,  2  Taunt.  Cobb,  18  Ala.  585;   Cox  v.  Davis,  17  lb. 

223  ;  AVliittemorc  v.  Brooks,  1  Greenl.  57  ;  714.] 
Burt  /;.  Walker,  4  B  &  Aid.  697 ;  Pytt  v.         8  Fassett  v.  Brown,  Peake's  Cas.  23. 


CHAP.  VI.] 


PRIVATE  WRITINGS. 


G17 


scribing  witness  is  unknown ;  ^  or,  if  the  witness  is  insane ;  ^  or, 
has  subsequently  become  infamous ;  ^  or,  has  become  the  adverse 
party  ;  *  or,  has  been  made  executor  or  administrator  to  one  of  the 
parties,  or  has  otherwise,  and  without  the  agency  of  the  party, 
subsequently  become  interested,  or  otherwise  incapacitated ;  ^  or, 
was  incapacitated  at  the  time  of  signing,  but  the  fact  was  not 
known  to  the  party ;  ^  in  all  these  cases,  the  execution  of  the  in- 
strument may  be  proved  by  other  evidence.  If  the  adverse  party, 
pending  the  cause,  solemnly  agrees  to  admit  the  execution,  other 
proof  is  not  necessary .^  And  if  the  witness,  being  called,  denies, 
or  does  not  recollect  having  seen  it  executed,  it  may  be  established 
by  other  evidence.^  If  the  witness  has  become  blind,  it  has  been 
held  that  this  did  not  excuse  the  party  from  calling  him ;  for  he 
may  be  able  still  to  testify  to  other  parts  of  the  res  gestce  at  the 
time  of  signing.^     If  the  witness  was  infamous  at  the  time  of 


1  Keeling  v.  Ball,  Peake's  Ev.  App.  78. 

2  Currie  v.  Child,  3  Campb.  283.  See 
also  3  T.  R.  712,  per  Buller,  J. 

3  Jones  V.  Mason,  2  Stra.  833.  If  the 
conviction  were  previous  to  the  attestation, 
it  is  as  if  not  attested  at  aU.  1  Starli. 
Evid.  325. 

*  Strange  v.  Dashwood,  1  Cooper's  Ch. 
Cas.  497. 

s'  Goss  V.  Tracy,  1  P.  Wms.  289 ;  God- 
frey V.  Norris,  1  Stra.  34 ;  Davison  v. 
Bloomer,  1  Dall.  123 ;  Bulkley  v.  Smith, 
2  Esp.  697;  Cunliffe  v.  Sefton,  2  East, 
183 ;  Burrett  v.  Taylor,  9  Ves.  381 ;  Ham- 
ilton V.  Marsden,  6  Binn.  4-5 ;  Hamilton  v. 
Williams.  1  Hay w.  139 ;  Hovill  v.  Stephen- 
son, 5  Bing.  439,  per  Best,  C.  J. ;  Saun- 
ders V.  Ferrill,  1  Iredell,  97.  And  see,  as 
to  the  manner  of  acquiring  the  interest, 
supra,  §  418. 

6  Nelius  V.  Brickell,  1  Hayw.  19.  In 
this  case,  the  witness  was  tlie  wife  of  the 
obligor.  And  see  Amherst  Bank  v.  Boot, 
2  ^let.  522,  tliat  if  the  subscribing  witness 
was  interested  at  the  time  of  attestation, 
and  is  dead  at  the  time  of  trial,  liis  hand- 
writing may  not  be  proved.  For  sucli 
evidence  would  be  merely  secondary,  and 
therefore  admissible  only  in  cases  where 
the  primary  evidence  could  have  been  ad- 
mitted. [If  a  subscribing  witness  to  an 
instrument  merely  makes  his  mark,  in- 
stead of  writing  his  name,  the  instrument 
is  to  be  proved  by  evidence  of  tlie  liand- 
writing  of  tlie  party  executing  it.  Watts 
V.  Ivilburn,  7  Geo.  356.] 


T  Lang  V.  Raine,  2  B.  &  P.  85. 

8  Abbott  V.  Plumbe,  1  Doug.  216 ; 
Lesher  v.  Levan,  1  Dall.  96 ;  Ley  v.  Bal- 
lard, 3  Esp.  173,  n. ;  Powell  v.  Blackett, 
1  Esp.  97;  Park  v.  Mears,  3  Esp.  171; 
Fitzgerald  v.  Elsee,  2  Campb.  635 ;  Blur- 
ton  V.  Toon,  Skin.  639 ;  McCraw  v.  Geu- 
ti-y,  3  Campb.  132;  GreUier  v.  Neale, 
Peake's  Cas.  145 ;  Whitaker  v.  Salisbury, 
15  Pick.  534  ;  Quimby  v.  Buzzell,  4  Sliepl. 
470;  supra,  §  27^.  Where  one  of  tlie  at- 
testing witnesses  to  a  will  has  no  recollec- 
tion of  having  subscribed  it,  but  testifies 
that  the  signature  of  his  name  thereto  is 
genuine ;  the  testimony  of  another  attest- 
ing witness,  that  tlie  first  did  subscribe 
his  name  in  tlie  testator's  presence,  is  suf- 
ficient evidence  of  that  fact.  Dewey  v. 
Dewej',  1  Met.  349.  See  also  Quimby  v. 
Buzzell,  4  Shepl.  470;  New  Haven  Co. 
Bank  v.  Mitchell,  15  Conn.  R.  206.  If  the 
witness  to  a  deed  recollects  seeing  the  sig- 
nature onlj-,  but  the  attesting  clause  is  in 
the  usual  formula,  the  jury  will  be  advised, 
in  the  absence  of  controlling  circumstan- 
ces to  find  the  sealing  and  delivery  also. 
Burling  v.  Paterson,  9  C.  &  P.  570.  Se« 
siq)ra,  §  38a. 

9  Cronk  i--.  Frith,  9  C.  &  P.  197  ;  2  M. 
&  Rob.  2i')2,  s.  c,  per  Ld.  Abinger,  C.  B. ; 
Rees  V.  Williams,  1  De  Gex  &  ISniale,  814. 
In  a  former  case  of  Pedler  v.  Paige,  1  M. 
&  Rob.  258,  Parke,  J.,  expressed  himself 
of  the  same  opinion,  but  felt  bound  by  the 
opposite  ruling  of  Ld.  Holt,  in  Wood  v. 
Drury,  1  Ld.  Raym.  734. 


52* 


Iil8 


LAW   OF  EVIDENCE. 


[part   III. 


attestation,  or  was  interested,  and  continues  so,  the  party  not  then 
knowing  the  fact,  the  attestation  is  treated  as  a  nullity.^ 

§  573.  A  fourth  exception  has  been  sometimes  admitted,  in 
regard  to  office  bonds,  required  l)y  law  to  be  taken  in  the  name  of 
some  pubhc  functionary,  in  trust  for  the  Ijcnefit  of  all  persons 
concerned,  and  to  he  preserved  in  the  public  registry  for  their 
protection  and  use;  of  the  due  execution  of  which,  as  well  as  of 
their  sufficiency,  such  officer  must  first  be  satisfied  and  the  bond 
approved,  before  the  party  is  qualified  to  enter  upon  the  duties 
of  his  office.  Such,  for  example,  are  the  bonds  given  for  their 
official  fidelity  and  good  conduct,  by  guardians,  executors,  and 
administrators,  to  the  judge  of  probate.  Such  documents,  it  is 
said,  have  a  high  character  of  authenticity,  and  need  not  be  verified 
l3y  the  ordinary  tests  of  truth,  applied  to  merely  private  instru- 
ments, namely,  the  testimony  of  the  subscribing  witnesses;  but 
when  they  are  taken  from  the  proper  public  repository,  it  is  only 
necessary  to  prove  the  identity  of  the  obhgor  with  the  party  in 
tiie  action.2  Whether  this  exception,  recently  asserted,  will  be 
generally  admitted,  remains  to  be  seen. 
^  §  573«.  A  further  exceptionjo  tibie  rule  requiring  proof  of  hand- 


1  Swire  v.  BeU,  5  T.  R.  371 ;  Honey- 
wood  V.  Peacock,  3  Campb.  19(3  ;  Amherst 
Bank  v.  Hoot,  2  Met.  522. 

2  Kello  V.  'Sla.get,  1  Dev.  &  Bat.  414. 
Tlie  case  of  deeds  enrolled  would  require  a 
distinct  consideration  in  this  place,  were 
not  tlie  practice  so  various  in  tlie  different 
states,  as  to  reduce  the  subject  to  a  mere 
question  of  local  law,  not  falling  within 
tlie  plan  of  tliis  work.  In  general,  it  may 
l)e  remarked,  that  in  all  the  United  States, 
provision  is  made  for  the  registration  and 
enrolment  of  deeds  of  conveyance  of 
lands  ;  and  that  prior  to  such  registration, 
the  deed  must  be  acknowledged  by  the 
grantor,  before  the  designated  magistrate ; 
and,  in  case  of  the  death  or  refusal  of  the 
grantor,  and  in  some  other  enumerated 
cases,  the  deed  nmst  be  proved  by  wit- 
nesses, eitlier  Ijefore  a  magistrate,  or  in  a 
court  of  record.  But  generally  speaking, 
such  acknowledgment  is  merely  designed 
to  entitle  the  deed  to  registration,  and 
registration  is,  in  most  states,  not  essen- 
tial to  passing  the  estate,  but  is  only  in- 
tended to  give  notoriety  to  the  convey- 
ance, as  a  substitute  for  livery  of  seisin. 
And  such  acknowledgment  is  not  gener- 
ally received,  as  jirii/td  fide  evidence  of 
the  execution  of  the  deed,  unless  by  force 


of  some  statute,  or  immemorial  usage,  ren- 
dering it  so ;  but  the  grantor,  or  party  to 
be  atfected  by  the  instrument,  may  still 
controvert  its  genuineness  and  validity. 
But  where  the  deed  falls  under  one  of  the 
exceptions,  and  has  been  proved  per  testes, 
there  seems  to  be  good  reason  for  receiv- 
ing this  probate,  dulj'  authenticated,  as 
sutficient  prima  facie  proof  of  the  execu- 
tion, and  such  is  miderstood  to  be  the 
course  of  practice,  as  settled  by  the  stat- 
utes of  many  of  the  United  States.  See 
4  Cruise's  Dig.  tit.  32,  ch.  29,  §  1,  note, 
and  ch.  2,  §§  77,  80,  notes  (Greenleaf's 
ed. ) ;  2  Lomax's  Dig.  353 ;  Doe  v.  John- 
son, 2  Scam.  522 ;  Morris  v.  Wadsworth, 
17  Wend.  103 ;  Thurman  v.  Cameron,  24 
Wend.  87.  The  Englisli  doctrine  is  found 
in  2  Pliil.  Evid.  243-247 ;  1  Stark.  Kvid. 
355-358.  And  see  Mr.  Metcalf  s  note  to  1 
Stark.  Evid.  357 ;  Brotherton  v.  Living- 
ston, 3  Watts  &  Serg.  334;  Vance  v. 
Schuyler,  1  Gilm.  111.  R.  IGO.  Where  a 
deed  executed  by  an  officer  acting  under 
authority  of  law  is  offered  in  evidence, 
not  in  proof  of  title,  but  in  proof  of  a  collat- 
eral fact,  the  authority  of  the  officer  needs 
not  to  be  shown.  Bolles  v.  Beach,  3  Am. 
Law  Journ.  122,  n.  s.  See  Rev.  St.  Wis- 
consin, p.  525 ;  Rev.  St.  Illinois,  p.  108. 


^  CHAP.  VI.]  PRIVATE   WRITINGS.  619 

writing-^  has  been  admitted,  in  the  case  of  letters  received  in  reply 
tQ_oth"ers  proved  to  have  been  sent  to  the  party.  Thus  where  the 
plaintiff's  attorney  wrote  a  letter  addressed  to  the  defendant  at  his 
residence,  and  sent  it  by  the  post,  to  which  he  received  a  reply 
purporting  to  be  from  the  defendant ;  it  was  held,  that  the  letter 
thus  received  was  admissible  in  evidence,  without  proof  of  the 
defendant's  handwriting,  and  that  letters  of  an  earlier  date  in  the 
same  handwriting,  miglit  also  be  read,  without  other  proof.  ^ 

§  573^.  A  fifth  exception  to  the  rule  requiring  proof  by  the 
subscribing  witness,  is  admitted,  where  the  instrument  is  not 
directly  in  issue,  but  comes  incidentally  in  question  in  the  course 
of  the  trial ;  in  which  case,  its  execution  may  be  proved  by  any 
competent  testimony,  without  calling  the  subscribing  witness.^ 

§  574.  The  degree  of  diligence  in  the  search  for  the  subscribing 
witnesses  is  the  same  which  is  required  in  the  search  for  a  lost 
paper,  the  principle  being  the  same  in  both  cases  .^  It  must  be 
a  strict,  diligent,  and  honest  inquiry  and  search,  satisfactory  to  the 
court,  under  the  circumstances  of  the  case.  It  should  be  made  at 
the  residence  of  the  witness,  if  known,  and  at  all  other  places 
where  he  may  be  expected  to  be  found ;  and  inquiry  should  be 
made  of  his  relatives,  and  others  who  may  be  supposed  to  be  able 
to  afford  information.  And  the  answers  given  to  such  inquiries 
may  be  given  in  evidence,  they  heing  not  hearsay,  but  parts  of  the 
res  gestce.^  If  there  is  more  than  one  attesting  witness,  the  absence 
of  them  all  must  be  satisfactorily  accounted  for,  in  order  to  let  in 
the  secondary  evidence. ° 

§  575.  When  secondary  e\ddence  of  the  execution  of  the  instru- 
ment is  thus  rendered  admissible,  it  will  not  be  necessary  to  prove 
the  handwriting  of  more  than  one  witness.^  And  this  evidence  is, 
in  general,  deemed  sufficient  to  admit  the  instrument  to  be  read/ 

1  Ovonston  v.  Wilson,  2  Car.  &  Kir.  1.         ^  Cunliffe  v.  Sefton,  2  East,  183 ;  Kel- 

2  Curtis  V.  Belknap,  G  Waslib.  433.  soy  v.  Hannier,  IS  Conn.  11.  311 ;  Doe  v. 
[On  flie  trial  of  an  indictment  tor  obtain-  Hathaway,  2  Allen,  G9. 
ing  the  signature  to  a  deed  by  false  pre-  *'  Adams  v.  Kerr,  1  B.  &  P.  360 ;  3 
tences,  the  deed  may  be  proved  by  the  Preston  on  Abstracts  of  Title,  pp.  72,  73. 
testimony  of  the  grantor,  without  calling  "  Kay  v.  Brookman,  3  C.  &  P.  555 ; 
the  attesting  witness.  Commonwealth  v.  Webb  v.  St.  Lawrence,  3  Bro.  P.  C.  640 ; 
Castles,  20  Law  Kep  (10  n.  s.)  411.]  IMott  v.  Doughty,  1  Johns.  Cas.  230 ;  Sluby 

'^  Snpra,  §  558.  v.    Chaniplin,  4  Johns.   401  ;    Adams    v. 

*  Tlie  cases  on  this   subject  are   nil-  Kerr,  1  B.  &  P.  300 ;  Cunlilfe  v.  Setiton, 

niorous ;    but  as   the  appUcation  of  the  2  East,  183 ;  Prince  v.  Blackburn,  2  East, 

rule  is  a  matter  in  the  discretion  of  the  250;  Douglas  v.  Sanderson,  2  Dall.  116; 

judge,  under  the  particular  circumstances  Cooke  v.  Woodrow,  5  Cranch,  13;  Ilamil- 

of  eacli  case,  it  is  thought  unnecessary  to  ton  v.  ^Nlarsden,  6  Binn.   45 ;   Powers  v. 

encumber  the  work  with  a  particular  refer-  McEerran,  2  S.  &  R.   44;    McKinder  v. 

ence  to  them.  Littlejolm,  1  Iredell,  66.     Some  courts 


620 


LAW   OF   EVIDENCE. 


1 


[part   III. 


^jeiug  accompanied  "with  proof  of  the  identity  of  the  party  sued  with 
the  person  who  appears  to  have  executed  the  instrument ;  which 
broof,  it  seems,  is  now  deemed  requisite,^  especially  where  the  deed 


liavc  also  required  proof  of  the  handwrit- 
ing of  the  obUgor,  in  addition  to  that  of 
the  subscribing  witness  ;  but  on  tliis  point 
tlie  practice  is  not  uniform.  Clark  v. 
Courtnev,  5  Peters,  3I'J;  iioi)kins  v.  De 
Grallenreid,  2  Bay,  187  ;  Oliphant  v.  Tag- 
gart,  1  Bay,  255;  Irving  v.  Irving,  2 
Hayw.  27 ;  Clark  v.  Saunderson,  3  Binn. 
I'J2;  Jackson  v.  La  Grange,  19  Johns. 
380 ;  Jackson  v.  Waldron,  13  Wend.  178, 
183,  197,  198,  semhh.  See  also  Gough  v. 
Cecil,  1  Selw.  N.  P.  538,  n.  (7),  (10th  edit.) 
See  supra,  §  84,  n. ;  Thomas  v.  Turnley,  2 
Rob.  Louis.  II.  200 ;  Dmibar  v.  Marden,  13 
X.  Ilamp.  311. 

1  Whitelocke  v.  Musgrove,  1  C.  &  M. 
oil.  But  it  seems  that  slight  evidence 
of  identity  will  suffice.  See  Nelson  v. 
Whittall,  1  B.  &  Aid.  19;  Warren  v. 
Anderson,  8  Scott,  384.  See  also  1 
Selw.  N.  P.  538,  n.  (7),  (18th  edit.) ;  PhU. 
&  Am.  on  Evid.  001,  n.  (4).  This  subject 
has  recently  been  reviewed,  in  the  cases 
of  Sewell  V.  Evans,  and  Koden  v.  Hyde,  4 
Ad.  &  El.  N.  s.  020.  In  the  former  case, 
which  was  an  action  for  goods  sold,  against 
Willium  Si-al  Evans,  it  was  proved  that 
the  goods  had  been  sold  to  a  person  of 
that  name,  wlio  had  been  a  customer,  and 
had  written  a  letter  acknowledging  the  re- 
ceipt of  the  goods ;  but  there  was  no  other 
proof  that  this  person  was  the  defendant. 
In  the  latter  case,  which  was  against  Henry 
TImims  liijdc,  as  the  acceptor  of  a  bill  of 
exchange,  it  appeared  that  a  person  of  that 
name  had  kept  cash  at  the  bank  where  the 
bill  was  payable,  and  had  drawn  checks, 
which  the  cashier  had  paid.  The  cashier 
knew  the  person's  handwriting  by  the 
checks,  and  testified  that  the  acceptance 
was  in  the  same  writing;  but  he  had  not 
paid  any  check  for  some  time,  and  did 
not  personall}'  kuow  him  ;  and  there  was 
no  other  proof  of  his  identity  with  the  de- 
fendant. The  court,  in  hoth  these  cases, 
held  that  the  evidence  of  identity  was 
liriniA  fade  sufficient.  In  the  latter  case, 
the  learned  judges  gave  their  reasons  as 
follows :  Lord  Uennian,  C.  J.,  "  The 
doubt  raised  here  has  arisen  out  of  the 
case  of  A\'iiitelocke  v.  Musgrove  (1  C.  •& 
M.  511;  s.  c.  8  Tyrwh.  541);  but  there 
the  circumstances  were  different.  The 
party  to  be  fixed  with  nal)ility  was  a 
marksman,  and  the  facts  of  the  case  made 
some  explanation  necessary.  But  where  a 
person,  in  the  course  of  the  ordinar}-  tran- 
sactions of  life,  has  signed  his  name  to 
Buch  an  mstrument  as  tliis,  I  do  not  tiiink 


there  is  an  instance  in  which  evidence  of 
identity  has  been  required,  except  Jones  v. 
Jones  (9  M.  &  W.  75).  There  the  name 
was  proved  to  be  very  common  in  the 
country ;  and  I  do  not  say  that  evidence 
of  this  kind  may  not  be  rendered  neces- 
sary by  particular  circumstances,  as,  for 
instance,  length  of  time  since  the  name 
was  signed.  But  in  cases  where  no  par- 
ticular circumstance  tends  to  raise  a  ques- 
tion as  to  the  party  being  the  sanje,  even 
identity  of  name  is  something  from  which 
an  inference  may  be  drawn.  If  the  name 
Avere  only  Joltn  Smith,  wliich  is  of  very  fre- 
quent occurrence,  there  might  not  be  much 
ground  for  drawing  the  conclusion.  But 
Henrij  Thomas  Rydes  are  not  so  numerous; 
and  ti'om  that,  and  the  circumstances  gen- 
erally, there  is  every  reason  to  believe 
that  the  acceptor  and  the  defendant  are 
identical.  The  dictum  of  Bolland,  B.  (3 
Tyrwh.  558),  has  been  already  answered. 
Lord  Lyudlmrst,  C.  B.,  asks  (3  Tyrwh. 
543),  why  the  onus  of  proving  a  negative 
in  tliese  cases  should  be  thrown  upon  the 
defendant ;  the  answer  is,  because  the 
proof  is  so  easy.  He  might  come  into 
court  and  have  the  witness  asked  whether 
he  was  the  man.  The  supposition  that 
the  right  man  has  been  sued  is  reasonable, 
on  account  of  the  danger  a  party  would 
incm-,  if  he  served  process  on  the  wrong ; 
for,  if  he  did  so  wilfully,  the  court  would 
no  doubt  exercise  their  jurisdiction  of 
punishing  for  a  contempt.  But  the  fraud 
is  one  which,  in  the  majority  of  cases,  it 
woidd  not  occur  to  any  one  to  commit. 
The  practice,  as  to  proof,  which  has  con- 
stantly prevailed  in  cases  of  tliis  kind, 
shows  how  m:hkely  it  is  that  such  frauds 
should  occur.  The  doubt  now  suggested 
has  never  been  raised  before  the  late  cases 
which  have  been  referred  to.  The  obser- 
vations of  LordAbinger  and  Alderson,  B., 
in  Greenshields  v.  Crawford  (9  M.  &  W. 
314), apply  to  this  case.  The  transactions 
of  the  world  could  not  go  on,  if  such  an 
objection  were  to  prevail.  It  is  unfor- 
tunate that  the  doubt  should  ever  have 
been  raised  ;  and  it  is  best  that  we  should 
sweep  it  aw.ay  as  soon  as  we  can."  —  Pat- 
teson,  J. :  "I  concur  in  all  that  has  been 
said  by  my  Lord.  And  the  rule  always 
laid  down  in  books  of  evidence  agrees 
with  our  present  decision.  The  execution 
of  a  deed  has  always  been  proved,  by  mere 
evidence  of  tlie  subscribing  witness's  hand- 
writing, if  he  was  dead.  TJie  party  execut- 
ing an  instrument  may  have  changed  his 


CHAP.  VI.] 


PRIVATE   WRITINGS. 


G21 


on  its  face  excites  suspicion  of  fraud.i  The  instrument  may  also 
in  such  cases  be  read,  upon  proof  of  the  handwriting  of  the  oljligor, 
or  party  by  whom  it  was  executed ;  ^  but  in  this  case  also  it  is  con- 
ceived, that  the  like  proof  of  the  identity  of  the  party  should  l^e 
required.  If  there  bo  no  subscribing  witness,  the  instrument  is 
sufficiently  proved  l^y  any  coni}x;tent  evidence  that  the  signature 
is  genuine.^ 

§  576.  In  considering  the  proof  of  private  writings,  we  are 
naturally  led  to  consider  the  subject  of  the  comparison  of  hands, 
upon  which  great  diversities  of  opinion  have  been  entertained. 
This  expression  seems  formerly  to  have  been  applied  to  every  case, 
where  the  genuineness  of  one  writing  was  proposed  to  be  tested 
before  the  jury,  by  comparing  it  with  another,  even  though  the 
latter  were  an  acknowledged  autograph ;  and  it  was  held  inad- 
missible, because  the  jury  were  supposed  to  be  too  illiterate  to 
judge  of  this  sort  of  evidence ;    a  reason  long  since   exploded.* 


residence.  Must  a  plaintiff  show  where 
he  lived  at  the  time  of  the  execution,  and 
then  trace  him  tiirough  every  change  of 
habitation,  until  he  is  served  with  the 
writ?  No  such  necessity  can  be  im- 
posed." —  Williams,  J. :  "I  am  of  the 
same  opinion.  It  cannot  be  said  here 
there  was  not  some  evidence  of  identity. 
A  man  of  the  defendant's  name  had  kept 
money  at  the  branch  bank ;  and  this  ac- 
ceptance is  proved  to  be  his  writing.  Then, 
is  that  man  the  defendant  I  That  it  is  a 
person  of  the  same  name  is  some  evi- 
dence, until  another  party  is  pointed  out 
who  might  have  been  tlie  acceptor.  In 
Jones  V.  Jones  (9  M.  &  W.  7-3),  the  same 
proof  was  relied  upon;  and  Lord  Abin- 
ger  said :  '  The  argument  for  the  plain- 
tiff might  be  correct,  if  the  case  had  not 
introduced  the  existence  (rf  many  Hugh 
Joneses  in  tlie  neighborhood  where  the 
note  was  made.'  It  appeared  that  the 
name  Hugh  Jones,  in  the  particular  part 
of  Wales,  was  so  common  as  hardly  to  be 
a  name  ;  so  tliat  a  doubt  was  raised  on  the 
evidence  by  cross-examination.  That  is 
not  so  here ;  and  therefore  the  conclusion 
must  be  ditJerent." 

1  Brown  v.  Kimball,  2-5  Wend.  469. 

2  In  Jackson  v.  Waldron,  11  Wend. 
178,  183,  196,  197,  proof  of  the  handwrit- 
ing of  the  obligor  was  held  not  regularly 
to  be  otlered,  unless  the  party  was  unable 
to  prove  the  handwriting  of  the  witness. 
But  in  Valentine  r.  Piper,  22  Pick.  90, 
proof  of  the  handwriting  of  the  part}'  was 
esteemed  more  satisfactory  than  that  of 
the  witnesses.     The  order  of  the  proofs, 


however,  is  a  matter  resting  entii-ely  in 
the  discretion  of  the  court. 

3  Pullen  V.  Hutchinson,  12  Shepl.  249. 

*  The  admission  of  evidence  by  com- 
parison of  hands,  in  Col.  Sidney's  case, 
8  Howell's  St.  Tr.  467,  was  one  of  tlie 
grounds  of  revershig  his  attainder.  Yet, 
though  it  clearly  appears  that  his  hand- 
writing was  proved  by  two  witnesses,  who 
had  seen  him  write,  and  by  a  third  who  had 
paid  bills  purporting  to  have  been  indorsed 
by  him,  this  was  held  illegal  evidence  in  a 
criminal  case.  [*In  Jumpertz  v.  The  Peo- 
ple, 21  III.  375,  the  English  rule  is  adhered 
to.  In  some  of  the  states,  the  witnesses 
are  allowed  to  testify  from  comparison  of 
handwriting  with  that  admitted  to  be 
genuine.  Power  r.  Frick,  2  Grant's  Cases, 
306.  That  is  not  generally  allowed  to 
ordinary  witnesses,  the  jmy  being  sup- 
posed as  competent  to  make  the  compari- 
son as  such  witnesses.  Chandler  v.  Le 
Barron,  45  Maine,  534 ;  Adams  v.  Field, 
21  Vt.  R.  256.  But  experts  are  allowed 
to  testity  whether  the  signature  in  dispute 
is  by  the  same  hand  as  another  admitted 
to  be  genuine.  And  while  comparison 
of  handwriting  by  the  jury  is  restricted 
in  the  English  practice  to  writings  put  in 
the  case  for  other  purposes,  it  is  allowed 
in  the  American  states  to  put  in  genuine 
signatures,  written  before  the  controversy 
arose,  for  the  mere'  purpose  of  enabhng 
the  jury  to  judge  by  comparison.  Adams 
V.  Field,  giijtra,  by  Bennett,  J.  But  those 
having  much  experience  in  the  trial  of 
questions  depending  upon  the  genuineness 
of  handwriting  will  not  requu-e  to  be  re- 


022 


LAW   OF   EVIDENCE. 


[part  III. 


All  evidence  of  liandwritiug,  except  where  the  witness  saw  the 
document  written,  is,  in  its  nature,  comparison.  It  is  the  belief 
which  a  witness  entertains,  upon  comparing  the  writing  in  question 
with  its  exemplar  in  his  mind,  derived  from  some  previous  knowl- 
edge.i  The  admissibility  of  some  evidence  of  this  kind  is  now  too 
well  established  to  be  shaken.  It  is  agreed  that,  if  the  witness  has 
the  proper  knowledge  of  the  party's  handwriting,  he  may  declare 
his  belief  in  regard  to  the  genuineness  of  the  writing  in  question. 
He  may  also  be  interrogated  as  to  the  circumstances  on  which  he 
founds  his  belief.  ^  The  point  upon  which  learned  judges  have 
ditTered  in  opinion  is,  upon  the  source  from  which  this  knowledge 
is  derived,  rather  than  as  to  the  degree  or  extent  of  it. 

§  577.  There  are  two  modes  of  acquiring  this  knowledge  of  the 
handwriting  of  another,  either  of  which  is  universally  admitted  to 
be  sufficient,  to  enable  a  witness  to  testify  to  its  genuineness. 
The  first  is  from  having  seen  him  tvrite.  It  is  held  sufficient  for 
this  purpose,  that  the  witness  has  seen  him  write  but  once,  and 
then  only  his  name.  The  proof  in  such  case  may  be  very  light ; 
but  the  jury  will  be  permitted  to  weigh  it.^     The  second  mode  is, 


minded  that  there  is  nothing  in  the  whole 
range  of  the  law  of  evidence,  more  unreli- 
able, or  where  courts  and  juries  are  more 
liable  to  be  imposed  upon.] 

1  Doe  V.  Suckermore,  5  Ad.  &  El.  730, 
per  Patteson,  J.  See,  also,  the  remarks 
of  Mr.  Evans,  2  Poth.  Obi.  App.  xvi.  §  6, 
ad.  calc.  p.  162. 

2  Kegina  v.  Murphy,  8  C.  &  P.  297 ; 
Commonwealth"  v.  Webster,  5  Cush.  295 ; 
[Keith  V.  Lathrop,  10  lb.  4-53.] 

'^  Garrells  v.  Alexander,  4  Esp.  37.  In 
Powell  1-.  Ford,  2  Stark.  R.  1G4,  the  witness 
had  never  seen  the  defendant  write  his 
eln-istian  name  ;  but  only  "  M.  Ford,"  and 
tlion  but  once  ;  wliereas  tlie  acceptance  of 
the  bill  in  question  was  written  with  both 
tlie  cliristian  and  surname  at  full  length ; 
anil  Lord  EUenborough  thought  it  not 
sutficicnt,  as  tlie  witness  had  no  perfect 
e.\am|ilar  of  the  signature  in  his  mind. 
liut  in  Lewis  v.  Sapio,  1  M.  &  Malk.  39, 
where  the  signature  was  "  L.  B.  Sapio," 
and  the  witness  iiad  seen  him  write  seve- 
ral times,  but  always  "  Mr.  Sapio,"  Lord 
Tenterden  held  it  sufficient.  A  witness 
has  also  been  i)crmitted  to  speak  as  to  the 
genuineness  of  a  person's  mark,  from  hav- 
ing seen  it  affi.xed  by  liim  on  several  oc- 
casions. George  v.  Surrey,  1  M.  &  Malk. 
OIO.       lj!)t_.w!l'"'t'   ^''"   k-nnwlofbro   nf  .t.l.P.. 

g'ltuig    has 


handwn 


^bjiign,jybtaiaed  by  the 


witness  from  seeing  the  party  write  his 
riame,  for  that.  iJitrjJO^e,  after  the  comiiieuce- 
rffciit  6f  the  suit,  the  eyides-ce  is  JLcld  in- 
admissible. Stranger  v.  Searle,  1  Esp.  14. 
See  also  Page  v.  Homans,  2  Shepl.  478. 
In  Slaymaker  u.  Wilson,  1  Penn.  R.  216, 
the  deposition  of  a  witness,  who  swore 
positively  to  her  father's  hand,  was  re- 
jected, because  she  did  not  say  how  she 
knew  it  to  be  his  hand.  But  in  Moody  v. 
Rovvcll,  17  Pick.  490,  such  evidence  was 
very  properly  held  sufficient  on  the  ground, 
that  it  was  for  the  other  party  to  explore 
the  sources  of  the  deponent's  knowledge, 
if  he  was  not  satisfied  tliat  it  was  suffi- 
cient. [Bowman  v.  Sanborn,  5  Foster,  87  ; 
Hopkins  v.  Megquire,  35  Maine,  78 ;  West 
V.  State,  2  N.  Jersey,  212.  Before  being 
admitted  to  testify  as  to  the  genuineness  of 
a  controverted  signature  from  his  knowl- 
edge of  the  handwriting  of  the  party,  a 
witness  ouglit,  beyond  all  question,  to  have 
seen  the  party  write,  or  be  conversant  with 
his  acknowledged  signature.  The  teller 
of  a  bank,  who  as  such  has  paid  many 
checks  purporting  to  be  drawn  by  a  per- 
son who  has  a  deposit  account  with  the 
bank,  but  has  not  seen  liini  write,  if  the 
testimony  sliows  notliing  further,  is  a  com- 
petent witness  to  testity  as  to  the  hand- 
writing of  such  person ;  but  he  is  not  a 
competent  witness  to  testify  to  the  hand- 


CHAP.  VI.]  PRIVATE   WRITINGS.  G23 

from  having  seen  letters,  bills,  or  other  documents,  purporting  to 
Lc  the  handwriting  of  the  party,  and  having  afterwards  personally 
communicated  with  him  respecting  them ;  or  acted  upon  them  as 
his,  the  party  having  known  and  acquiesced  in  such  acts,  founded 
upon  their  supposed  genuineness;  or,  by  s,uc\\  adoption  of  them 
into  the  ordinary  business  transactions  of  life,  as  induces  a  reason- 
able presumption  of  their  being  his  own  writings;  evidence  of 
the  identity  of  the  party  being  of  course  added  aliunde,  if  the 
witness  be  not  personally  acquainted  w^ith  him.i  In  both  these 
cases,  the  witness  acquires  his  knowledge  by  his  own  observation 
of  facts,  occurring  under  his  own  eye,  and  which  is  especially  to 
be  remarked,  without  having  regard  to  any  particular  person,  case, 
or  document. 

§  578.  This  rule,  requiring  personal  knowledge  on  the  part  of 
the  witness,  has  been  relaxed  in  two  cases.  (1.)  Where  writings 
are  of  such  antiquity,  that  lining  witnesses  cannot  be  had,  and  yet 
are  not  so  old  as  to  prove  themselves.^  Here  the  course  is,  to 
produce  other  documents,  either  admitted  to  be  genuine,  or  proved 
to  have  been  respected  and  treated  and  acted  upon  as  such,  by 
all  parties  ;  and  to  call  experts  to  compare  them,  and  to  testify 
their  opinion  concerning  the  genuineness  of  the  instrument  in 
question.^  (2.)  Where  other  writings,  admitted  to  be  genuine,  are 
already  in  the  case.  Here  the  comparison  may  be  made  by  the 
jury,  with  or  without  the  aid  of  experts.  The  reason  assigned 
for  this  is,  that  as  the  jury  are  entitled  to  look  at  such  writings 
for  one  purpose,  it  is  better  to  permit  them,  under  the  advice  and 
direction  of  the  court,  to  examine  them  for  all  purposes,  than  to 

writing  of  such  person,  if  it  appears  tliat  Commonwealth  v.  Carey,  2  Pick.  47  ;  Jolin- 

some  of  the  checks  so  paitl  were  forged,  son  v.  Daverne,  10  Johns.  lo4 ;    Burr  v. 

and    that    the   witnessed   [)aid  alike  the  Harper,  Holt's  Cas.  420 ;  Pope  v.  Askew, 

forged  and  genuine  clieeks.     Brigham  v.  1  Iredell,  R.  16.     If  a  letter  has  been  sent 

Peters,  1  Gray,  189,  145,  14G.     A  witness  to  the  adverse  party,  by  post,  and  an  an- 

who  has  done  business  with  the  maker  of  swer  received,  tlie  answer  may  be  read  in 

the  note,  and  seen  him  v/ritQ, hut  onli/  since  evidence,  without  i)roof  of  the  handwriting. 

the  (late  of  the  disputed  note,  may  never-  Ovenstou  v.  Wilson,  2  C.  &  K.  1 ;  siijmi, 

theless  give  iiis  opinion  in  regard  to  the  §  573«.      [See   also   Kinney  v.  Flynn,  2 

genuineness   of   the   note,   the   objection  R.I.  319 ;  IMcKonkey  r.  Gaylord,  1  Jones, 

going  to  the  weight  and  not  to  the  conipe-  Law,  n.  c.  94.] 
tency  of  the  evidence.     Keith  v.  Lathrop,         -  Supra,  §  570. 

10  Cush.  453.]  8  See  20  Law  Mag.  323 ;  Brune  v.  Raw- 

1  Doe  V.  Suckermore,  5  Ad.  &  El.  731,  lings,  7  East,  282 ;    Morewood  v.  Wood, 

per  Patteson,   J. ;    Lord  Ferrers  v.  Shir-  14  East,  328 ;   Gould  v.  Jones,  1  W.  Bl. 

ley,  Eitzg.   195;    Carey  v.  Pitt,  Peake's  384;  Doe  i'.  Tarver,  Ry.  &  M.  143 ;  Jack- 

Evid.  App.  81 ;  Thorpe  v.  Gisburne,  2  C.  son  v.  Brooks,  8  Wend.  426. 
&  P.  21 ;  Harrington  v.  Fry,  Ry.  &  M.  90 ; 


(324  LAW   OF   EVIDENCE.  [PART   III. 

embarrass  tliem  with  impracticable  distinctions,  to  the  peril  of 
the  cause. ^ 

§  570.  A  tlilrd  mode  of  acquiring  knowledge  of  the  party's  hand- 
writing was  proposed  to  be  introduced  in  the  case  of  Doe  v.  Suck- 
ermore;"^  upon  which,  the  learned  judges  being  equally  divided  in 
oj)inion,  no  judgment  was  given ;  namely,  by  first  satisfying  the 
witness,  by  some  information  or  evidence  not  falling  under  either 
of  the  two  preceding  heads,  that  certain  papers  were  genuine, 
and  then  desiring  the  witness  to  study  them,  so  as  to  acquire 
a  knowledge  of  the  party's  handwriting,  and  fix  an  exemplar  in 
his  mind;  and  then  asking  him  his  opinion  in  regard  to  the 
disputed  paper ;  or  else,  by  offeriiig  such  papers  to  the  jury,  with 
proof  of  their  genuineness,  and  then  asking  the  witness  to  testify 
his  opinion,  whether  those  and  the  disputed  paper  were  written 
by  the  same  person.  This  method  supposes  the  writing  to  be 
generally  that  of  a  stranger ;  for  if  it  is  that  of  the  party  to  the 
suit,  and  is  denied  by  him,  the  witness  may  well  derive  his  knowl- 
edge from  papers,  admitted  by  that  party  to  be  genuine,  if  such 
papers  were  not  selected  nor  fabricated  for  the  occasion,  as  has 
already  been  stated  in  the  preceding  section.  It  is  obvious,  that 
if  the  witness  does  not  speak  from  his  own  knowledge,  derived  in 
the  first  or  second  modes  before  mentioned,  but  has  derived  it 
from  papers  shown  to  him  for  that  purpose,  the  production  of 
these  papers  may  be  called  for,  and  their  genuineness  contested. 
So  that  the  third  mode  of  information  proposed  resolves  itself 
into  this  question,  namely,  whether  documents,  irrelevant  to  the 
issues  on  the  record,  may  be  received  in  evidence  at  the  trial,  to 
enaljle  the  jury  to  institute  a  comparison  of  hands,  or  to  enable 
a  witness  so  to  do.^ 

1  See  20  Law  Mag.  319,  323,  324 ;  Grif-  these  being  in  evidence  for  any  other  pur- 

fith  u.  Williams,  1  C.  &  J.  47  ;  SoHta  v.  pose  of  the  cause),  and  he  stated  that  he 

Yarrow,  1  ;M.  &  Kob.  133 ;   Hex  v.  Mor-  believed  them  to  be  his.     On  the  fbllow- 

gan,  Id.  i:i4,  n. ;  Doe  v.  Newton,  5  Ad.  &  ing  day,  the  plaintiff  tendered  a  witness, 

EI.  514  ;  Bromage  v.  Rice,  7  C.  &  P.  548 ;  to  prove  the  attestation  not  to  be  genuine. 

Hammond's  case,  2  Greenl.  33  ;  Wadding-  The  witness  was  an  inspector  at  the  Bank 

ton  c.  Cousins,  7  C.  &  P.  51)5  ;  [*  Van  Wyck  of  England,  and  had  no  knowledge  of  the 

V.  Mcintosh,  4  Kernan,  439.]  handwriting    of   the    supposed    attesting 

'^  5  Ad.  &  El.  ~(Yi.    In  this  case,  a  de-  witness,  except  from  having,  previously 

fendant  in  ejectment  produced  a  will,  and,  to  the  trial  and  again  between  the  two 

on  one  day  of  the  trial  (which  lasted  sev-  days,  examined  tlie  signatures   admitted 

eral  days),  called  an  attesting  witness,  who  by  the  attesting  witness,  which  /idmission 

swore  that  the  attestation  was  his.     On  he  had  heard  in  court.     Per  Lord  Pen- 

his  cross-examination,  two  signatures  to  man,  C.  J.,  and  Williams,  J.,  such  evi- 

depositions,  rt-spucting  tlie  same  will,  in  dence  was  receivable;    per  Patteson  and 

an  ecclesiastical  court,  and  several  other  Coleridge,  Js.,  it  was  upt. 

Bignatures,  were  shown  to  him  (none  of  ^  See  5  Ad.  &  El.  734,  per  Patteson,  J. 


CHAP.  VI.] 


PRIVATE    WRITINGS. 


625 


§  580.  In  regaixl  to  admitting  such  evidence,  upon  an  examina- 
tion in  chief,  for  the  mere  puqxjue  of  enablhig  the  jury  to  ju'Ige 
of  the  handwriting,  the  modern  English  decisions  are  clearly 
opposed  to  it.^  For  this,  two  reasons  have  been  assigned  :  namely, 
first,  the  danger  of  fraud  in  the  selection  of  the  writings,  offered  as 
specimens  for  the  occasion ;  and,  secondly,  that,  if  admitted,  the 
genuineness  of  these  specimens  may  he  contested,  and  others 
successively  introduced,  to  the  infinite  multi})lication  of  collateral 
issues,  and  the  subversion  of  justice.  To  which  may  be  added, 
the  danger  of  surprise  upon  the  other  party,  who  may  not  know 
what  documents  are  to  be  produced,  and,  therefore,  may  not  be 
prepared  to  meet  the  inferences  drawn  i'rom  thcm.^  The  same 
mischiefs  would  follow,  if  the  same  writings  were  introduced  to 
the  jury  through  the  medium  of  experts? 

§  581.  But,  with  respect  to  the  admission  of  papers  irrelevant 
to  the  record,  for  the  sole  purpose  of  creating  a  standard  of  com- 
parison of  handwriting,  the  American  decisions  are  far  from  being 
uniform.'*     If  it  were  possible  to  extract  from  the  conflicting  judg- 


1  Bromage  v.  Rice,  7  C.  &  P.  548; 
Waddington  v.  Cousins,  Id.  5U5 ;  Doe  v. 
Kt'wton,  5  Ad.  &  El.  514;  Hughes  v. 
Kogers,  8  M.  &  W.  123  ;  Griffits  v.  Ivery, 
11  Ad.  &  El.  3-22 ;  The  Fitzwalter  Peer- 
age, 10  CI  &  Fin.  103  ;  Regina  r.  Barber, 
1  Car.  &  Kir.  434.  See  also  Regina  v. 
Murphv,  1  Arinstr.  ^laoartn.  &  Ogle,  R. 
204;  Regina  v.  Caldwell,  Id.  324.  But 
where  a  witness,  upon  his  examination  in 
chief,  stated  his  opinion  that  a  signature 
was  not  genuine,  because  he  had  never 
seen  it  signed  R.  II.,  but  always  R.  W. 
H.,  it  was  held  proper,  on  cross-examina- 
tion, to  show  liini  a  paper  signed  R.  II., 
and  ask  him  if  it  was  genuine,  though  it 
was  not  connected  witli  the  cause ;  and  lie 
answering  that,  in  his  opinion,  it  was  so, 
it  was  held  jn-oper  further  to  ask  him 
whether  he  would  now  say  that  he  had 
never  seen  a  genuine  signature  of  the 
party  witliout  the  initials  R.  W. ;  the  ob- 
ject being  to  test  the  value  of  the  wit- 
ness's opinion.  Younye  r.  Honner,  1  Car. 
&  Kir.  51 ;  2  M.  &  Rob.  536,  s.  c. 

-  Phil.  &  Am.  on  Evid.  700,  701.  See 
the  Law  Review,  No.  4,  for  August,  1845, 
pp.  285-304,  where  this  subject  is  more 
fully  discussed. 

•^  Experts  are  received  to  testify, 
whether  the  writing  is  a  real  or  a  feigned 
hand,  and  may  compare  it  with  otlicr 
writings  already  in  evidence  in  the  cause. 
Revett  V.  Braiiam,  4  T.  R.  407;  Ilam- 
VOL.  I.  63 


mond's  case,  2  Greenl.  33 ;  Moody  v. 
Rowell,  17  Pick.  400 ;  Commonwealth  v. 
Carey,  2  Pick.  47  ;  Lyon  v.  Lyman,  9 
Conn.  55 ;  Hubly  r.  Vanhorne,  7  S.  &  R. 
185 ;  Lodge  v.  Phipher,  11  S.  &  R.  383. 
And  tlie  court  wilL determine  whether  the 
witness  is  or  is  not  an  expert,  before  ad- 
mitting him  to  testily.  The  St.-ite  v. 
Allen,  1  Hawks,  (3.  But,  upon  this  kind 
of  evidence,  learned  judges  are  of  opinion 
that  \{^ry  little,  if  any  reliance,  ought  to 
be  placed.  See  Doc  v.  Suckermore,  5 
Ad.  i.^  El.  751,  per  Ld.  Denman;  Gurnev 
v.  Langlands,  5  B.  &  Aid.  330 ;  Rex  v. 
Cator,  4  Esp.  117 ;  The  Tracy  Peerage, 
10  Cl.  &  Fin.  154.  In  the  People  v.  Sp'oo- 
ner,  1  Denio,  R.  343,  it  was  held  inadmis- 
sible. Where  one  writing  crosses  an- 
other, an  expert  may  testify  which,  in  his 
ojiinion,  was  the  first  made.  Cooper  v. 
Bockett,  4  IMoore,  P.  C.  Cas.  433.  The 
nature  of  the  evidence  of  experts,  and 
whether  they  are  to  be  regarded  as  arbi- 
trators, or  (juasi  judges  and  jurors,  or 
merely  as  witnesses,  is  discussed  with 
great  acumen  by  I'rofessor  INIittermaier, 
in  his  Treatise  on  l<h-idence  in  Criminal 
Cases  (Traite  de  la  Preuve  en  Matiere 
Criminelle),  Ch.  XXVI. 

■*  In  New  York]  Virriinia,  and  Noiih 
Carol um,  the  English  rule  is  adopted,  and 
such  testimony  is  rejected.  Jackson  r. 
Piiillips,  0  Cowen,  04.  112;  Titford  v. 
Knott,  2  Johns.  Cas.  210.     The  People  v. 


G26 


LAW   OF   EVIDENCE. 


[rART  III. 


iiicnts  a  rule,  wliicli  would  find  support  from  the  majority  of 
them,  perhcaps  it  would  be  found  not  to  extend  be3^ond  this :  that 
such  papers  can  be  offered  in  evidence  to  the  jury,  only  when  no 
collateral  issue  can  be  raised  concerning  them ;  which  is  only 
where  the  papers  are  citlier  conceded  to  be  genuine,  or  are  such 
as  the  other  party  is  estoi)iJcd  to  deny ;  or  are  i)apcrs  belonging 
to  the  witness,  who  was  himself  previously  acquainted  with  the 
j)arty's  liandwriting,  and  who  exhibits  them  in  confirmation  and 
exi)lanation  of  his  own  testimony.^ 

§  581a.  A  distinction,  however,  has  been  recently  taken,  between 
the  case  of  collateral  writings  otfered  in  evidence  to  prove  the 
general  style  or  character  of  the  party's  autograph,  and  of  similar 
writings,  when  offered  to  prove  a  peculiar  mode  of  spelling  another 
person's  name,  or  other  words,  in  order  to  show  from  this  fact, 


Spooner,  1  Denio,  R.  313 ;  Eowt  v.  Kile, 
1  U'ijih,  II.  216.  The  State  v.  Allen,  1 
Hawks,  6;  Pope  v.  Askew,  1  Iredell,  R. 
10.  [So,  in  Jlhode  Island.  Kinnev  v. 
riynn,  2  R.  I.  Rep.  319.  The  weij,^ht  of 
aiitiiority  in  KcntKcL-ij  is  against  the  ad- 
mission of  handwritings  for  the  pnrpose 
<jf  coinjiarison,  even  by  the  jury.  Hawk- 
ins /•.  Grimes,  13  B.  Mon.  258.]  In  J/«s- 
.yiichiisetts,  Maine^aud  Connecticut,  it  seems 
to  have  hecome  the  settled  praetice  to  ad- 
mit any  jiajiers  to  the  jury,  whetlier  rele- 
vant to  tlie  issue  or  not,  ti)r  the  purpose 
of  comjiarison  of  the  handwriting.  Ho- 
mer i\  Wallis,  11  Mass.  SOU ;  Moody  v. 
Roweil,  17  Pick.  4'JO;  Ricliardson  v. 
Newcomb,  21  Pick.  315;  llanunond's 
case,  2  Greenl.  33 ;  Lyon  v.  Lyman,  9 
<  'onn.  55.  In  Xt-ir  Ilantjisliire  and  South 
<.'(irolina,  the  admissibility  of  such  papers 
has  been  limited  to  cases,  where  other 
l>roof  of  handwriting  is  already  in  the 
liuise,  and  for  tlie  purpose  of  turning  the 
•scale  in  doubtful  cases.  Myers  v.  Toscan, 
3  N.  Hamp.  47;  The  State  v.  Carr,  5  N. 
ilamp.  3tJ7;  Bowman  v.  Plunket,  3 
Mc(\  518;  Duncan  v.  Beard,  2  Nott  & 
McC.  401.  In  Piniixijlciniia,  the  admis- 
^ion  luis  been  limited  to  ]iai)ers  conceded 
to  be  genuine.  iMcCorkle  r.  15inns,  5 
J{inn.  340;  Lancaster  v.  Whitehill,  10 
S.  &  R.  110;  or  concerning  which 
there  is  no  doubt.-  Baker  v.  Haines,  G 
NViiart.  284;  3  (ircenl.  Ev.  §  lOCi,  note. 
I A  pa] ter  proposed  to  be  used  as  a  stand- 
ard, cannot  be  provc-d  to  be  an  original, 
and  a  genuine  signature,  merely  by  the 
opinion  of  a  witness  that  it  is  so;  such 
opinion  being  derived  solely  from  his 
general  knowledge  of  the  handwriting  of 


the  person  whose  signature  it  pui'ported  to 
be.  Commonwealth  v.  Eastman,  1  Cush. 
189,  217;  Martin  v.  Maguire,  7  Gray, 
177  ;  Bacon  v.  Williams,  13  Gray,  525. 
But  an  expert  may  testify,  whether  in  his 
opuiion  a  signature  is  a  genuine  one  or 
simulated,  althougii  he  has  no  knowledge 
of  the  handwriting  of  the  party  whose 
signature  it  is  claimed  to  be.  Withee  v. 
Rowe,  45  Maine,  571.] 

1  Smithi  V.  Fenner,  1  Gall.  170,  175. 
See  also  (joldsmith  v.  I'ane,  3  Ilalst.  87 ; 
Bank  of  I'ennsylvania  v.  Ilaldemand,  1 
Penn.  R.  161;  Greaves  v.  Hunter,  2  C.  & 
P.  447 ;  Clermont  v.  TuUidge,  4  C.  &  P. 
1 ;  Burr  v.  Harper,  Holt's  Cas.  420 ; 
Sharp  V.  Sharp,  2  Leigh,  249 ;  Baker  v. 
Haines,  6  Whart.  284 ;  Finch  i'.  Gridley, 
25  Wend.  4G9 ;  Fogg  v.  Dennis,  3  Humph. 
47 ;  [Depue  v.  I'lace,  7  Penn.  Law  -lour. 
289  ;  Coiumonwealth  v.  Eastman,  1  Cush. 
189 ;  Hicks  v.  Pearson,  19  Ohio,  R.  426.  A 
writing  made  in  the  presence  of  the  court 
and  jurj-  by  the  party  whose  signature  is 
in  dispute  may  be  submitted  to  the  jury 
for  tlie  i)urpose  of  comparison.  Chandler 
V.  Le  Barron,  45  Maine,  534.]  [*A  press 
copy  of  a  letter  might  furnish  a  very  unsat- 
istactory  standard  of  comparison  by  which 
to  determine  whether  another  paper,  the 
liandwriting  of  which  was  in  controversy, 
was  written  by  the  same  person ;  but, 
although  incomiietent  as  a  means  of  com- 
parison, by  which  to  judge  of  the  charac- 
teristics of  a  handwriting  which  is  in  dis- 
pute, it  might  still  retain  enough  of  its 
original  character,  to  be  identified  by  a 
Avitncss,  when  its  own  gonuineiiess  was 
called  in  f|uostiou.  Bigelow,  Ch.  J.,  in 
Commonwealth  c.  Jefirics,  7  Allen,  562.] 


CHAP.  VI.]  PRIVATE   WRITINGS.  627 

that  the  principal  writing  was  his  own.  Thus,  where,  to  an  action 
for  a  libel,  the  defendant  pleaded  that  the  plaintiff  had  sent  to  him 
a  libellous  letter,  and,  to  prove  this,  gave  in  evidence  the  envelope, 
in  which  the  defendant's  name  was  spelt  with  a  superfluous  t,  and 
then  offered  in  evidence  some  other  letters  of  the  plaintiff,  in 
which  he  had  spelt  the  defendant's  name  in  the  same  pecidiar 
manner;  which  last-mentioned  letters  Patteson,  J.,  rejected;  it 
was  held  that  the  rejection  Avas  wrong,  and  that  the  letters  were 
admissible.^ 

§  582.  Where  the  sources  of  primary  evidence  of  a  written  in- 
strument are  exhausted,  secondary  evidence,  as  we  have  elsewhere 
shown,  is  admissible ;  but  whether,  in  this  species  of  evidence,  any 
degrees  are  recognized  as  of  binding  force,  is  not  perfectly  agreed ; 
but  the  better  opinion  seems  to  be,  that,  generally  speaking,  there 
are  none.  But  this  rule,  with  its  exceptions,  having  been  previ- 
ously discussed,  it  is  not  necessary  here  to  pursue  the  subject  any 
further.^ 

§  583.  The  effect  of  private  writings,  when  offered  in  evidence, 
has  been  incidentally  considered,  under  various  heads,  in  the 
preceding  pages,  so  far  as  it  is  established  and  governed  by  any 
rules  of  law.  The  rest  belongs  to  the  jury,  into  whose  province 
it  is  not  intended  here  to  intrude. 

§  584.  Having  thus  completed  the  original  design  of  this  volume, 
in  a  view  of  the  principles  and  rules  of  the  law  of  evidence,  under- 

1  Brookes  v.  Tichborne,  14  Jour.  1122;  letters  and  the  mode  of  writing  of  a  partic- 
2  Eng.  Law  &  Eq.  E.  371:.  In  this  case,  ular  word,  but  to  prove  a  pecuhar  mode 
Parke,  B.,  after  stating  the  case,  observed  of  sjie lliiig  words,  wliich  niiglit  be  evi- 
as  follows  :  "  On  showing  cause,  it  was  denced  l)y  tlie  plaintifi'  having  orally  spelt 
l)ardly  disputed  that,  if  the  habit  of  the  it  in  a  different  way,  or  written  it  in  that 
plaintiff  so  to  sj)eU  the  word  was  proved,  it  way,  once  or  oftener,  in  any  sort  of  char- 
was  not  some  evidence  against  the  i)laintlff,  acter,  the  more  frequently,  the  gi'eater 
to  show  that  he  wrote  the  Ubel ;  indeed  we  the  value  of  the  evidence.  For  that  pur- 
think  that  proposition  cannot  be  disputed,  pose,  one  or  more  specimens  written  by 
the  value  of  such  evidence  depending  on  him,  with  tliat  peculiar  orthography', 
the  degree  of  peculiarity  in  the  mode  of  would  be  admissible.  AVe  are  of  opinion, 
spelling,  and  the  number  of  occasions  in  therefore,  that  this  evidence  ought  to  have 
which  the  plaintiff  had  used  it ;  but  it  was  been  received,  and  not  having  been  re- 
objected,  that  tlie  mode  of  proof  of  tliat  ceived,  the  rule  for  a  new  trial  must  be 
habit  was  ini])roper,  and  that  the  liabit  made  absolute."  In  Jackson  v.  Phillii>s, 
sliould  be  jiroved  as  the  cliaracter  of  hand-  'J  Cowen,  Ul,  where  the  facts  were  of  a 
writing,  not  by  producing  one  or  more  similar  character,  the  collateral  deed  was 
specimens  and. comparing  them,  but  by  offered  and  rejected,  on  the  sole  ground 
some  witness  wlio  was  acquainted  with  it,  of  comparison  of  liands  ;  the  distinction  in 
from  having  seen  the  party  write,  or  cor-  the  te.xt  not  having  been  taken  or  alluded 
resjionding  with  him.     But  we  tliink  this  to. 

is  not  like  the  case   of  general  style  or  -  Supra,  §  84,  note  (2) ;   Doe  v.  Ross, 

character  of   handwrhing;    the  object  is  7  M.  &  W.  102;  8  Dowl.  SBi),  s.  c. 
not  to  show  similarity  of  the  form  of  the 


(528  LAW  OF  EVIDENCE.  [PAET  III. 

stood  to  be  common  to  all  the  United  States,  this  part  of  the  work 
is  here  properly  brought  to  a  close.  The  student  will  not  fail  to 
observe  the  symmetry  and  beauty  of  this  branch  of  the  law,  under 
whatever  disadvantages  it  may  labor  from  the  manner  of  treat- 
ment ;  and  will  rise  from  the  study  of  its  principles,  convinced, 
with  Lord  Erskine,  that  "they  are  founded  in  the  charities  of 
relidon  —  in  the  philosophy  of  nature  —  in  the  truths  of  history — 
and  in  the  experience  of  common  life."  ^ 

1  24  HoweU's  St.  Tr.  966. 


INDEX. 


A. 

Section 

ABDUCTION, 

wife  competent  to  prove ^^^ 

ACCESS, 

when  presumed • ^^ 

ACCESSARY, 

not  a  competent  witness  for  the  principal 407 

ACCOMPLICES, 

when  admissible  as  witnesses 379-3bw 

(See  Witnesses.) 
ACCOUNT, 

rendered,  effect  of,  as  an  admission 212 

ACQUIESCENCE, 

what  is,  so  as  to  bind  the  party 197 

ACQUITTAL, 

record  of,  when  evidence 583 

ACTS  OF  PARTIES, 

when  admissible  to  explain  writings 293,  295 

ACTS  OF  STATE,     (See  Public  Records  and  Documents.) 

how  proved 4/ J 

ACTS, 

book  of,  when  evidence 519 

ADJUSTMENT  OF  LOSS, 

when  and  how  for  conclusive 212 

(See  Admissions.) 
ADMINISTRATION, 

letters  of,  how  proved 519 

prima  facie  evidence  of  death 5oO 

foreign,  effect  of 544 

53* 


030  ^  INDEX. 

Section 

ADMINISTRATOR, 

comiietency  of,  as  a  witness 347,  402 

ailinissiuiis  by 179 

promise  by,  when  it  must  be  in  writing  . 267 

ADMIRALTY, 

courts  of  and  seals,  judicially  noticed 5,  479 

judgments,  when  and  liow  far  conclusive 525,  541 

ad:missions, 

of  contents  of  a  writing,  when  not  sufficient 96 

distinction  between  confessio  juris  and  confessio  facti  .     .96,  203 

by  agents,  when  binding  on  principal ■.       113,  114 

what  ami  when  receivable 169,170 

made  by  a  party  to  the  record 171 

party  in  interest 172 

one  of  joint  parties 172 

party  merely  nominal,  excluded 172 

how  avoided,  if  pleaded    .     .     173 
one  of  several  parties,  not  receivable  unless  a  joint 

interest 174 

rated  parishioner 275 

quasi  corporator^ 175,  «. 

one  of  several  parties,  common  interest  not  suffi- 
cient, unless  also  joint 176 

apparently  joint,  is  |?nmayhcie  sufficient     .     .     .     .     177 
answer  in  chancery  of  one  defendant,  when  receiv- 

'    able  against  others 178 

persons  acting  in  auter  droit,  when  receivable       .     .     179 

guardian,  &c.,  binds  himself  only 179 

party  interested 180 

strangers,  when  receival)le 181 

a  person  refei-red  to  by  the  party 182 

whether  conclu- 
sive    ....     184 
wife,  when  admissible  against  husband   .     .      185,  341,  n. 

attorney 186 

principal,  as  against  surety 187,  188 

one  in  privity  with  another 189,  190 

assignor,  before  assignment 190 

by  whom  tliey  may  be  proved 191 

time  and  circumstances  of  making  the  admission       ....     192 

offi.-r  of  compromise  is  not  an  admission 192 

made  under  duress 193 


INDEX.  631 

Section 
ADMISSIONS  —  Continued. 

direct  and  incidental  admissions,  same  in  effect 104 

implied  from  assumed  character,  language,  and  conduct  .       195,  19G 

acquiescence,  when 197,  197  a 

possession  of  documents 198 

implied  assent  to  the  verbal  statements  of  another    ....     199 

verbal  to  be  received  with  great  caution 200 

whole  to  be  taken  together 201,  202 

verbal  receivable  only  to  facts  provable  by  parol  .     .     .     .96,  203 

when  and  how  far  conclusive 204 

judicial  admissions,  how  far  conclusive    .     .     .27,  186,  205,  527  a 

by  payment  into  court 205 

if  improvidently  made,  what  remedy    .     .     206 
acted  upon  by  others,  when  and  how  far  conclusive  .     27,  207,  208 

not  acted  upon,  not  conclusive 209 

when  held  conclusive,  from  public  policy 210,211 

by  receipts 212 

by  adjustment  of  a  loss 212 

by  account  rendered 212 

in  bill  in  equity 212 

ADVERSE  ENJOYMENT, 

when  it  constitutes  title 17 

AFFIDAVIT, 

may  be  made  in  his  own  case,  by  atheist 370,  n. 

persons  infamous  .     .     .     .     375 
other  parties     .     .  348,  349,  558 

wife 344 

AFFIRMATION, 

judicial,  when  substituted  for  an  oath 371 

AFFIRI\L\TIVE,  {See  Onus  Probaxdi.) 

AGE, 

proof  of 104,  116,  493 

AGENT, 

when  and  how  far  his  declarations  bind  the  principal     .       113,  234 
when   a    competent   witness    for    the    principal    and    when 

not 416,  417 

{See  Witnesses.) 

may  prove  his  own  authority,  if  parol 416 

w^hen  his  authoi'ity  must  be  in  writing 269 

AGREEMENT,  {See  Contract.) 

ALLEGATIONS,  {See  Onus  Probandi.) 

material 51 


632  INDEX. 

,  Section 

ALLEGATIONS—  Continued. 

exclude  collateral  facts 52 

■what  are  collateral  facts 53 

when  character  is  material 54,  55 

descriptive,  nature  of 5G,  57,  58 

formal  and  informal,  what 59 

made  desciiptive  by  the  mode  of  statement 60 

of  time,  place,  quantity,  &c.,  when  descriptive      ....      61,  62 

redundant 67 

difference  between  these  and  redundancy  of  proof  .       68 
"  immaterial,"  "  impertinent," 
and  "  unnecessaiy  "      ....  60,  n. 
ALTERATION, 

of  written  contracts  by  oral  agreements       302 

of  instruments,  what,  and  eflfect  of 564-568 

distinguished  from  spoliation 566 

{See  Private  Writings.) 
AMBIGUITIES, 

latent  and  patent,  what 297-300 

when  parol  evidence  admissible  to  explain 297-300 

not  to  be  confounded  with  inaccuracies 299 

AMENDMENT, 

allowed,  to  avoid  the  consequences  of  a  variance       ....       73 
ANCIENT  WRITINGS, 

when  admissible  without  proof  of  execution    .       21,  142-144,  570 
ANSWER, 

of  one  defendant  in  chancery,  when  admissible  against  the 

other 178 

what  amount  of  evidence  necessary  to  disprove    .     .     .       260,  261 

admissible  for  defendant,  why 351,  551 

proof  of 512 

APPOINTMENT  TO  OFFICE, 

when  proved  by  acting  in  it 83-92 

ARBITRATORS, 

not  bound  to  disclose  grounds  of  award 249 

ARMORIAL  BEARINGS, 

when  evidence  of  pedigree 105,  n. 

ARREST, 

exemption  from,         {See  Witnesses.) 
ARTICLES  OF  THE  PEACE, 

by  Avife  against  husband 343 

ARTICLES  OF  WAR,     {See  Acts  of  State.) 


INDEX.  633 

Section 
ASSAULT  AND  BATTERY, 

of  wife,  by  husband 343 

ASSIGNOR, 

admissions  by 1^0 

ASSUMPSIT,  {See  Contract.) 

action  of,  when  barred  by  prior  recovery  in  tort 532 

ATHEISTS, 

incompetent  witnesses 3G8-372 

{See  Witnesses.) 
ATTACHMENT, 

for  contempt 319 

ATTENDANCE  OF  WITNESSES, 

how  procured 309-319 

{See  Witnesses.) 
ATTESTING  WITNESSES, 

declarations  of  deceased  witnesses  rejected,  Avhy       .     .     .     .     126 
{See  Private  Writings.) 
ATTORNEY, 

when  his  admissions  bind  his  client 186 

whether  a  competent  witness 364,  386 

{See  Privileged  Communications.) 
AUCTIONEER, 

is  agent  of  both  buyer  and  seller 269 

AVERMENT,  {>See  Allegations.) 

AWARD, 

genei'ally  conclusive 183,  n.,  184 

B. 

BAIL, 

how  rendered  a  competent  witness  for  principal 430 

{See  Witnesses.) 
BAILOR, 

when  a  competent  witness 348 

BANK, 

books  of 474-493 

(*S'ee  Public  Records  and  Documents.) 
BANKRUPT, 

when  competent  as  a  witness 392 

BANKRUPTCY, 

effect  of  discharge  by,  to  restore  competency 430 

BARON  AND  FEME,     {See  Husband  and  Wife.) 


634  INDEX. 

Section 
BAPTISM, 

register  of 493 

BEGINNING  AND  REPLY, 

wlio  are  eatitled  to  it 75 

whether  affected  by  proof  of  damages 75,  7  G 

BELIEF, 

grounds  of 7-12 

of  handwriting 575 

{See  Experts,  Witnesses.) 
BENTHAM,  JEREMY, 

character  of  liis  legal  writings 435,  n. 

BIBLE, 

family  record  in,  when  evidence 104 

BIGAMY, 

proof  of,  by  second  wife 339 

BILL  IN  EQUITY, 

how  for  its  statements  are  evidence  against  plaintiff  .     .     .     .     212 
BILL  OF  EXCHANGE, 

parties  to,  when  incompetent  to  impeach 383-385 

{See  Witnesses.)  , 

BILL  OF  PARCELS, 

may  be  explained  by  parol 305  a 

BIRTH, 

proof  of ' 104,  116,  493 

BISHOP'S  REGISTER, 

inspection  of 474 

nature  of 483,  484 

{See  Public  Books.) 
BLANK, 

in  an  instrument,  when  and  by  whom  it  may  be  filled    .      5C7,  568, 

568  a 
BOND,  {See  Private  Writings.) 

BOOKS, 

of  science,  not  admissible  in  evidence 44,  n. 

sliop,  when  and  how  far  admissible  in  evidence 117 

of  third  persons,  when  and  why  admissible       .     .        115-117,  120, 

151-154 
{See  Hearsay.) 

office  books,  corporation  books,  &c 474-476,  493-495 

{See  Public  Records  and  Documents.) 
BOUNDARY, 

surveyor's  marks  provable  by  parol 94 


INDEX.  635 

Sectiok 
BOUNDARY  —  Continued. 

when  provable  by  reputation 145,  n. 

rules  of  construction  as  to 301,  w. 

BURDEN   OF   PROOF, 74^81 

{See  Oxus  Probandi.) 

C. 

CANCELLATION,  {See  Deed,  Will.) 

CAPTAIN,  {See  Shipmaster.) 

CARRIER, 

when  admissible  as  a  witness 416 

CERTIFICATES, 

by  public  officers,  in  what  cases  admissible 498 

CERTIORARI, 

to  remove  records "'^-' 

CESTUI  QUE  TRUST,  * 

when  his  admissions  are  evidence  against  his  trustee      .     .     .     180 
CHANCERY,     {See  the  particular  titles  of  Bill,  Answer,  Depo- 
sitions, and  other  proceedings  in  Chancery.) 
CHARACTER, 

when  it  is  relevant  to  the  issue      .     . 54,  oo 

CHILDREN, 

competency  of,  as  witnesses 367 

CIRCUMSTANTIAL  EVIDENCE, 

{See  Evidence,  Presumption.) 
CLERGYMEN, 

generally  bound  to  disclose  confessions  made  to  them     .       229,  247 
CLERK, 

of  attorney,  when  not  compellable  to  testify 239 

COHABITATION, 

when  presumptive  evidence  of  legitimacy  of  issue    ....       82 
COLLATERAL  FACTS, 

what,  and  when  excluded '•^'-i  44o 

COLOR, 

when  a  material  averment ^^ 

COMMISSION, 

to  take  testimony ^-^ 

COMMITMENT, 

proved  by  calendar ^^"^ 

COMMON, 

customary  right  of,  provable  by  reputation  .    128,  131,  137,  ??.,  405 


Om  INDEX. 

Section 

co^imonp:r, 

\vliL'n  a  competent  witness 505 

COMrAlilSU.N  OF  HANDWRITINGS, 

{See  Private  Writings.) 

COMPETENCY,     (See  Husband  and  Wife,  Witnesses.) 

CUMPKU.MISE, 

otler  of,  not  an  admission 192 

CONDEMNATION, 

(See  Records  and  Judicial  Proceedings.) 

CONFESSION  OF  GUILT, 

dillerence  between  confessio  juris  and  confessio  facti      ...       96 

to  be  received  with  great  caution 214 

judicial,  conclusive 216 

extrajudicial,  not  conclusive,  without  corroborating  proof  .     .     217 

the  whole  to  be  taken  together 218 

must  be  voluntary 219,  220 

influence    of   inducements    previously   offered   must    have 

ceased 221,  222 

made  under  inducements  offered  by  officers  and  magistrates    .     222 

private  persons  ....     223 
during  official  examination  by  magistrate     .     .     .       221-227 

what  inducements  do  not  render  inadmissible 229 

by  drunken  persons  admissible 229 

made  under  illegal  restraint,  whether  admissible 230 

when  property  discovered,  in  consequence  of 231 

produced  by  person  confessing  guilt  .     .     .     .     232 

by  one  of  several  jointly  guilty 233 

by  agent 234 

in  case  of  treason,  its  effect 235 

CONFIDENTIAL  COMMUNICATIONS, 

not  generally  privileged,  unless  in  certain  cases    .     .     .       237,  248 
{See  Evidence.     Privileged  Communications.) 

C(JNFlIiMATION, 

of  testimony  of  accomplices  when  required      .     .     .  380,  381,  382 

CONSENT, 

when  implied  from  silence 197,  198,  199 

CONSIDERATION, 

when  the  recital  of  payment  of,  may  be  denied 26 

when  it  must  be  stated  and  proved 6G,  67,  68 

when  a  furtlicr  consideration  may  be  proved   ....       285,  304 

C(JNSOLIDATION  RULE, 

party  to,  incompetent  as  a  witness 395 


INDEX.  637 

Section 
CONSPIRACY, 

conspirators  bound  by  each  other's  acts  and  declarations     .     .     Ill 

generally  not  competent  witnesses  for  each  other  ....  407 
CONSTABLE, 

confessions  made  under  inducements  by,  inadmissible  .  .  .  222 
CONSTRUCTION, 

defined 277 

CONTEMPT, 

in  arresting  a  witness,  or  preventing  his  attendance  .     .     .     .     316 

CONTRACT, 

when  presumed '*' 

is  an  entire  thing,  and  must  be  proved  as  laid 66 

CONVEYANCE, 

when  presumed ^" 

CONVEYANCER, 

communications  to,  privileged "41 

CONVICTION, 

record  of,  is  the  only  proper  evidence 374,  37o 

(See  Witnesses.) 

COPY, 

proof  by,  when  allowed   .     .      91,  479-490,  513-520,  559,  571,  n. 
{See  Public  Records  and  Documents.    Records  and 
Judicial  Writings.) 
CORONER,  (See  Officer.) 

CORPORATIONS, 

their  several  kinds  and  natures 331-333 

shares  in,  are  personal  estate 270 

CORPORATOR, 

when  admissible  as  a  witness 331-333 

(See  Witnesses.) 

admissions  by ^'^^^  ^' 

CORRESPONDENCE, 

the  whole  read 201,  n. 

{See  Letters.) 
CORROBORATION,      (See  Confirmation.) 

of  answer  in  chancery -6^ 

CORROBORATIVE  EVIDENCE, 

what  it  is ^^1'  "• 

COSTS, 

liability  to,  renders  incompetent 401,  402 

(See  Witnesses.) 
VOL.  I.  54 


638  INDEX. 

Section 
CO-TRESPASSER, 

wlit'u  admissible  as  a  witness 357,  359 

(See  Witnesses.) 
(.'( )l'NSEL,         (See  Privileged  Communications.)     .    .       237-246 
COUNTERPART, 

if  any,  must  be  accounted  for,  befoi-e  secondary  evidence  is 

admitted 558 

COVENANT, 

effect  of  alterations  upon 564-568 

(See  Private  Writings.) 
COVERTURE,  (See  Husband  and  Wife.) 

CREDIT  OF  WITNESSES, 

mode  of  impeaching 461-469 

restoring 467 

(See  Witnesses.) 
CREDITOR, 

when  competent  as  a  witness 392 

CRBIEN  FALSI,  what 373 

(See  Witnesses.) 
CRIMES, 

what  render  incompetent 373,  374 

(See  Witnesses.) 
CRIMINAL  CONVERSATION,  action  for, 

letters  of  wife  to  a  husband  admissible 102 

wife  competent  to  prove 344 

CROSS-EXAMINATION, 

of  witnesses 445-467 

(See  Witnesses.) 
COURTESY, 

tenant  by,  a  competent  Avitness  for  the  heir 389 

CUSTODY, 

proper,  what 142 

CUSTOM, 

how  proved 128-139 

l^y  what  witness 405 

(See  Hearsay.) 
CUSTOM-HOUSE, 

books,  inspection  of 475 

(»S'ee  Public  Books.) 


INDEX.  639 

D. 

Section 
DAMAGES,       - 

proof  of "5 

when  unliquidated '^G 

DEAF  AND  DUMB, 

competent  witness 3G6 

DEATH, 

when  presumed 29,  30,  oo,  41 

proof  of 550 

DECLARATIONS,    {See  Admissions.     Hearsat.) 
DECREES  IN  CHANCERY, 

proof  of 511 

their  admissibility  and  effect 550,  551 

DEED, 

when  presumed 46 

how  to  be  set  out  in  pleading G9 

cancellation  of,  when  it  devests  the  estate 2G5,  5G8 

delivery  of 5G8  a,  ?i. 

DEFAULT, 

judgment  by,  its  effect  on  admissibility  of  the  party  as  a  wit- 
ness for  co-defendants 355,  356,  357 

DEMURRER, 

in  chancery,  effect  of 551 

DEPOSIT, 

of  money,  to  restoi-e  competency  of  a  witness       .     .    -.     .     .     430 
DEPOSITIONS, 

of  witnesses  subsequently  interested,  whether  admissible    .  1 67, 1 G8 
residing  abroad,  when  and  how  taken    .     .     .     .     320 

sick,  &c 320,321 

in  general,  manner  of  taking  .     .     .     .     .       321-324 

in  perpetuimi 324,  325,  552 

taken  in  chancery,  how  proved,  to  be  read  at  law      .     .       552,  553 

foreign 552 

to  be  read  in  another  action,  complete  identity  of  parties  not 

requisite 553,  554 

power  of  cross-examination  requisite     ....     554 

when  admissible  agamst  strangers 555 

{See  AYiTNKSSES.) 
DESCRIPTION, 

what  is  matter  of 5G-72 


'S 


640  INDEX. 

Section 
DESCRIPTION—  Cmtimied. 

in  general 56-64 

in  criminal  cases 65 

in  contracts 66-68 

in  deeds 68,  69 

in  records 70 

in  prescription 71 

DEVISE, 

must  be  in  writing 272 

admissibility  of  parol  evidence  to  explain     .     .     .       287,  289-291 
DIPLOMA, 

of  physician,  when  necessary  to  be  shown 195,  n. 

DISCHARGE, 

of  written  contract,  by  parol 302-304 

DISFRANCHISEMENT, 

of  a  corporator,  to  render  him  a  competent  witness  ....     430 
DISPARAGEMENT   OF   TITLE, 

declarations  in 109 

DIVORCE, 

foreign  sentence  of,  its  effect 544,  545 

DO]\nCILE, 

declarations  as  to 108 

DOWER, 

tenant  in,  a  competent  witness  for  heir 383 

DRIVER, 

of  carriage,  -when  incompetent  as  a  witness 396 

DUCES  TECUM, 

subpoena 414,  558 

{See  Private  Writings.     Witnesses.) 
DUPLICATE,  ' 

must  be  accounted  for,  before  secondary  proof  admitted     .     .     558 
DURESS, 

admissions  made  under 193 

DYING   DECLARATIONS, 

when  admissible 156-162,346 

E. 

ECCLESIASTICAL   COURTS, 

number  of  witnesses  required  in 260  a,  n. 

wliat  part  of  their  jurisdiction  known  here      ....       518,  559 

proceedings  in,  how  proved,  &c 510,  518 

their  effect 550 


INDEX.  641 

Sectiox 
EJECTMENT, 

defendant  in,  when  a  competent  witness SCO 

ENROLMENT, 

of  deeds 573,  n. 

ENTRIES, 

by  third  jiersons,  when  and  why  ad- 
missible            115-117,  120,  151-155 

(See  Hearsay.) 
ERASURE,  (See  Alterations.     Private  Writings.) 
ESTOPPEL, 

principle  and  nature  of 22,  23,  n.,  204-210 

by  deed,  who  are  estopped,  and  in  what  cases  .     .     .       24,  25,  211 

as  to  what  recitals 26 

en  pais 207 

(See  Admissions.) 
EVIDENCE, 

definition 1 

moral,  what 1 

competent 2 

satisfactory  and  sufficient 2 

-direct  and  circumstantial 13 

presumptive  (See  Presumption.) 

relevancy  of 40-55 

general  rules  governing  production  of 50 

must  correspond  with  the  allegations  and  be  confined  to 

the  issue 51 

of  knowledge  and  intention,  when  material 53 

of  character,  when  material  to  the  issue 54,  55 

proof  of  substance  of  issue  is  sufficient 56-73 

rules  of,  the  same  in  criminal  as  in  civil  cases 65 

the  best  always  is  required 82 

what  is  meant  by  best  evidence 82 

primary,  and  secondary,  what 84 

secondary,  whether  any  degrees  in 84,  n. 

oral,  not  to  be  substituted  for  written,  where  the  law 

requires  writing 86 

for  written  contract      ...  87 

for  any  writing  material  to 

the  controversy   ....  88 
unless  collateral .            89 
for  written  declaration  in  ex- 
tremis               161 

bi* 


v\ 


042  INDEX. 

Section' 
EVIDENCE—  Continued. 

when  it  may  be  given,  though  a  writing  exists     ....  90 

exceptions  to  the  rule  which  rejects  secondary  evidence  in  — 

1.  case  of  public  records 91 

2.  official  ai)i3ointments 92 

3.  result  of  voluminous  facts,  accounts, 

&c 93 

4.  inscriptions  on  monuments,  &,c.  .     .     .  94,  105 

5.  examinations  on  the  voir  dire     ...  95 

6.  some  cases  of  admission 9G 

7.  witness    subsequently  interested,    his 

former  deposition  admissible    ...  168 

excluded  from  public  policy,  what  and  when   ....       236-254 

professional  communications    .     .       237-248 

p'oceedings  of  arbitrators   ....  249 

secrets  of  state 250,  251 

proceedings  of  grand  jurors     .     .     .  252 

indecent,  or  uijurious  to  the  feelings 

of  others 253,  344 

communications     between    husband 

and  wife 254,334-345 

illegally  obtained,  still  admissible 254  a 

what  amount   necessary  to   establish   a   charge  of  trea- 
son   255,  256 

to  establish  a  charge  of  perjury   .     .     257 
to  overthrow  an  answer  in  chan- 
cery       260 

in  ecclesiastical  courts    .     .     .       260  a,  n. 
written,  when  requisite  by  the  statute  of  frauds   .     .     .       261—274 

instruments  of 307 

oral,  what 308 

corroborative,  what 381,  n. 

objection  to  competency  of,  when  to  be  taken 421 

{See  Privileged  Communications.) 
EXAMINATION, 

on  criniinal  charge,  when  admissible 224,  227,  228 

signature  of  prisoner  unnecessary    .     .     .     228 
EXAMINATION  IN  BANKRUPTCY, 

not  admissible  against  the  bankrupt,  on  a  criminal  charge  .     .     226 
EXCHEQUER, 

judgments  in,  when  conclusive 525,  541 


INDEX.  643 

Section 
EXECUTION, 

of  deeds,  &c.,  proof  of '569,  572 

(See  Private  Writings.) 
EXECUTIVE, 

acts  of,  how  proved 479 

EXECUTOR, 

admissions  by 179 

foreign 544 

EXEMPLIFICATION, 

what  and  how  obtained 501 

EXPENSES    OF   WITNESSES,  (See  Witnesses.) 
EXPERTS, 

who  are 440,  w. 

when  their  testimony  is  admissible  to  decipher  writings      .     .     280 

to  explain  terms  of  art      .     280 
to   explain    pi'ovincial- 

isms,  &c 280 

to  what  matters  they  may  give  opinions      .     .        440,  576,  580,  n. 

F. 

FACTOR,  (See  Agent.) 

FAMILY, 

recognition  by,  in  proof  of  pedigree 103,  104,  134 

(See  Hearsay.     Pedigree.) 
FELONY, 

conviction  of,  incapacitates  witness 373 

(See  Witnesses.) 
FIXTURES, 

what  are 271 

FLEET   BOOKS,  (See  Public  Books.) 

FORCIBLE   ENTRY, 

tenant  incompetent  as  a  witness 403 

(See  Witnesses.) 
FORCIBLE  MARRIAGE, 

wife  competent  to  prove 343 

FOREIGN    COURTS,     (See  Public  Records  and  Documents. 

Records  and  Judicial  Writings.) 
FOREIGN  JUDGMENTS, 

of  inftimy,  do  not  go  to  the  competency 376 

proof  of 514 

in  rem,  effect  of 543-545 


044  INDEX. 

Section 
FOREIGX  JUDGMENTS—  Continued. 

in  personam 545—549 

{See  Records  and  Judicial  Writings.) 
FOREIGN  LAWS, 

proof  of 486,488 

{See  Public  Records  and  Documents.) 
FOREIGN  STATES,  {See  Judicial  Notice.     Public  Records 

AND  Documents.     Records  and  Judicial  Writings.) 
FORGERY, 

conviction  of,  incapacitates  witness 373,  374 

party  whose  name  is  forged,  when  competent 414 

{See  Private  Writings.) 
FRAUD, 

general  presumption  against 34,  35,  80 

{See  Presumptions.) 
FRAUDS, 

statute  of 262-274 

{See  Writings.) 

G. 

GAME  LAWS, 

want   of   qualifications   under,  must  be   i3roved  by  the 

affirmant 78 

GAZETTE, 

in  what  cases  admissible 492 

{See  Public  Records  and  Documents.) 
GOVERNMENT, 

acts  of,  how  proved 383,  478,  491,  492 

{See  Public  Records  and  Documents.) 
GOVERNOR, 

of  a  State  or  Province,  when  not  bound  to  testify     .     .     .     .     251 

provincial,  communications  from,  privileged 251 

{See  Privileged  Communications.) 
GRAND  JURY, 

transactions  before,  how  far  privileged 252 

{See  Privileged  Communications.) 
GRANT, 

when  presumed 45 

conclusively 17 

GUARDIAN, 

admission  by 179 


INDEX.  645 

Section 
GUILTY  POSSESSION, 

evidence  of    .... 34, 35 

H. 

HABEAS  CORPUS, 

ad  testificandum 312 

{See  Witnesses.) 
HANDWRITING, 

attorney  competent  to  prove  client's  writings   ......     242 

proof  of,  in  general 576-581 

{See  Private  Writings.) 
HEARSAY, 

what  it  is 99,  100 

what  is  not  hearsay- 
information,  upon  which  one  has  acted    ....     101 
conversation  of  one  whose  sanity  is  questioned     .     101 
answers  given  to  inquiries  for  information  .       101,  574 

general  reputation 101,  101  a 

expressions  of  bodily  or  mental  feelings       .     .     .     102 

complaints  of  injury,  recenti  facto 102 

declarations  of  family,  as  to  pedigree  .    103,  104,  104  a, 

134 

inscriptions 105 

declarations  accompanying  and  qualifying  an 

act  done 108,  109 

in  disparagement  of  title 109 

of  other  conspirators Ill 

of  partners .     112 

of  agents 113,  114 

of  agents  and  employees  of  corporations  .     .  114  a 

entries  by  third  persons 115-117,  120 

indorsements  of  partial  payment  ....  121,  122 
when  and  on  what  principle  hearsay  is  rejected  .  .  .  124,  125 
when  admissible  by  way  of  exception  to  the  rule, 

1.  in  matters  of  public  and  general  interest     .  128-140 
restricted  to  declarations  of  persons  since 

dead 130 

and  concerning  ancient  rights 130 

ante  litem  motami  .     .       131-134 

situation  of  the  declarant 135 

why  rejected  as  to  private  rights 137 


646  INDEX. 

Section 
HEARSAY  —  CoiUlnued. 

as  to  particular  facts  .  .  .  .  138 
includes  writings,  as  well  as  oral  declarations  .  139 
admissible  also  against  public  rights    ....     140 

2.  iu  matters  of  ancient  possessions    .     .     .       141-146 

boundaries,  when       ....     145,  n. 
perambulations 14G 

3.  declarations  against  interest       ....       147-155 
books  of  bailiffs  and  receivers 150 

private  persons 150 

the  rule  includes  all  the  facts  related  in  the 

entry 152 

the  party  must  have  been  a  competent  wit- 
ness        153 

in  entries  by  agents,  agency  must  be  proved  .  154 
books  of  deceased  rectors,  «&;c 155 

4.  dying  declarations 156-162 

principle  of  admission 156-158 

declarant  must  have  been  competent  to  testify  .  159 
circumstances  must  be  shown  to  the  court  .  .  160 
if  written,  writing  must  be  produced  .     .     .     .     161 

weakness  of  this  evidence 1 62 

substance  of  the  declarations 161a 

answers  by  signs 161  6 

of  husband  or  wife,  when  admissible  against 

the  other 345,346 

5.  testimony  of  witnesses  since  deceased     .       163-166 
whether  extended  to  case  of  witness  sick  or 

abroad 163,  ??. 

must  have  been  a  right  to  cross-examine     .     .  164 

the  precise  words  need  not  be  proved      .     .     .  165 

may  be  proved  by  any  competent  witness     .     .  166 

witness  subsequently  interested      .     .     .       167,  168 
declarations    and  replies   of  persons   referred   to, 

admissible    . 182 

of  interpreters 183 

HEATHEN, 

not  incompetent  as  a  witness,  and  how  sworn 371 

TIETR, 

apparent,  a  competent  witness  for  ancestor 390 

when  competent  as  witness 392 


INDEX.  647 

Sectiox 
HERALD'S  BOOKS, 

■when  admissible 105,  n. 

HIGHWAY, 

judgment  for  non-repair  of,  "when  admissible  in  favor  of 

other  defendants 534 

HISTORY, 

public,  when  admissible 497 

PIOMICIDE, 

when  malice  presumed  from 34 

HONORARY  OBLIGATION, 

does  not  incapacitate  witness 388 

HOUSE,  {See  Legislature.) 

HUSBAND  AND  WIFE, 

intercourse  between,  when  presumed 28 

coercion  of  wife  by  husband,  when  presumed 28 

admissions  by  wife,  when  good  against  husband 185 

communications  inter  sese,  privileged 254,  334 

no  matter  when  the  relation  begun  or  ended 336 

wife  competent  witness  after  husband's  death,  when      .     .     .     338 

none  but  lawful  wife  incompetent  as  witness 339 

whether  husband's  consent  removes  incompetency     ....     340 

rule  applies  when  husband  is  interested 341,  407 

competent  witness  in  collateral  proceedings 342 

exceptions  to  the  rule  in  favor  of  wife 343,  344 

rule  extends  to  cases  of  treason,  semi 345 

wife  not  competent  witness  for  joint  conspirators  with  her 

husband     .  0 407 


I. 

IDENTITY, 

proof  of,  when  requisite        381,  493,  575,  577 

by  attorney 245 

IDIOT, 

incompetent  as  a  witness 3 Go 

INCOMPETENCY,  (See  Witnesses.) 

INCORPOREAL  RIGHTS, 

how  affected  by  destruction  of  deeds 265,  568 

INDEMNITY, 

w^hen  it  restores  competency 420 

INDICTMENT, 

inspection  and  copy  of,  right  to •     471 


648  INDEX. 

Section 
INDORSEE, 

how  affected  by  admissions  of  indorser 190 

(See  Admissions.) 
INDORSEMENT, 

of  part  payment,  on  a  bond  or  note 121,  122 

INDORSER, 

when  a  competent  witness 190,  383,  385 

(See  Witnesses.) 
INDUCEMENT, 

when  it  must  be  proved 63,  w. 

INFAMY, 

renders  a  witness  incompetent 372-376 

how  removed 377,  378 

(•See  Witnesses.) 
INFANCY, 

proof  of,  rests  on  the  party  asserting  it 81 

(See  Onus  Probandi.) 
INFERIOR  COURTS, 

inspection  of  their  records 473 

proof  of  their  records 513 

(See  Public  Records  and  Documents.     Records  and 
Judicial  Writings.) 
INFIDEL, 

incompetent  as  a  witness 368-372 

(See  Witnesses.) 
INFORMER, 

competency  of,  as  a  witness %     .     .     .       412-415 

(See  Witnesses.) 
INHABITANT, 

admissions  by 175 

when  competent  as  a  witness 331 

rated 331,  n. 

INNOCENCE, 

presumed 34,  35 

(See  Presumptions.) 
INQUISITIONS, 

proof  of 515 

admissibility  and  effect  of 556 

INSANITY, 

presumed  to  continue  after  being  once  proved  to  exist  ...       42 
(See  Lunacy.) 
INSCRIPTIONS, 

provable  by  secondary  evidence 95,  105 


INDEX.  649 

Section 
INSOLVENT, 

omission  of  a  claim  by,  in  schedule  of  debts  due  to  him     .     .     196 
(See  Admissions.) 
INSPECTION, 

of  public  records  and  documents   ........       471-478 

(See  Public  Records  and  Documents.) 

of  private  writings 559-562 

(.See  Private  Writings.) 
INSTRUCTIONS, 

to  counsel,  privileged 240,  241 

(See  Privileged  Communications.) 
INTEREST, 

of  witness,  eiFect  of,  when  subsequently  acquired       .   167,  418-420 
subsequent,  does  not  exclude  bis  previous  deposition  in 

chanceiy 168 

whether  it  does  at  law 168 

(See  Witnesses.) 
INTE  RPRET  ATION, 

defined 277 

INTERPRETER, 

his  declarations,  when  pi-ovable  aliunde 183 

communications  through,  when  privileged 239 

INTESTATE, ' 

his  declarations  admissible  against  his  administrator       .     .     .     189 
(See  Admissions.) 
ISSUE, 

proof  of,  on  whom.     (See  Onus  Probandl) 

what  is  sufficient  proof  of 56-73 

(See  Allegations.    Variance.) 

J. 

JEW, 

how  to  be  sworn 371 

JOINT  OBLIGOR, 

competency  of    ... 395 

JOURNALS,  (ASee  Legislature.) 

JUDGE, 

his  province 49,  160,  219,  277,  «.,  365,  w. 

when  incompetent  as  a  witness 166,  249,  364 

his  notes,  when  admissible 166 

VOL.  1.  55 


C.')0  INDEX. 

Section 
JUDICIAL  NUTICE, 

of  wliat  tilings  taken 4,  5,  6,  6  a 

Jl'DHMENTS,     {See  Recokos  and  Judicial  "Writings.) 
J  IKiS  DICTION, 

of  foreign  courts  must  be  shown 540,  541 

(See  Records  and  Judicial  Writings.) 
JURORS, 

their  province 49,  IGO,  219,  277,  w.,  365,  «. 

their  competency  as  witnesses 252,  252  a,  363,  n. 

K. 
KINDRED,     (See  Family.     Hearsay.     Pedigree.) 

L. 

LARCENY, 

presumption  of,  from  possession  when 11,  34 

(See  Presumptions.     Guilty  Possession.) 

LAW  AND  FACT, 49 

LEADING  QUESTIONS, 

what,  and  wlien  permitted 434,  435,  447 

(*See  Witnesses.) 
LEASE, 

when  it  must  be  by  writing 263,  264 

expounded  by  local  custom,  when 294 

LEGuVL  ESTATE, 

conveyance  of,  when  presumed 46 

LEGATEE, 

when  competent  as  a  witness    . 392 

LEGISLATURE, 

transactions  of,  how  proved 480-482 

(See  Public  Records  and  Documents.) 

proceedings  in,  how  far  privileged  from  disclosure     .     .     .     251,  n. 
LEGITIMACY, 

when  presumed 28 

LESSEE, 

identity  of,  with  lessor,  as  party  to  suit 535 

LESSOR, 

of  plaintiff  in  ejectment,  regarded  as  the  real  party      .     .     .     535 
LETTERS, 

post-marks  on 40 

parol  evidence  of  contents  of 87,  88 


I 


INDEX.  651 

Section 

LETTERS  —  Continued. 

proof  of,  by  letter-book 116 

cross-examination  as  to 88?  89,  463-466 

addressed  to  one  alleged  to  be  insane 101 

written  by  one  conspirator,  evidence  against  others  .     .     .     .     Ill 

of  wife  to  husband,  when  admissible 102 

whole  correspondence,  when  it  may  be  read 201,  n. 

prior  letters,  by  whom  they  must  be  produced       .     .     .     .     201,  «. 
{See  Evidence.     Hearsay.     Parol  Evidence.     Witnesses.) 

LETTERS  ROGATORY, 

what 320 

LIABILITY  OVER, 

its  effect  on  competency  of  witness 393-397 

{See  Witnesses.) 

LIBEL, 

published  by  agent  or  servant,  liability  of  principal  for      .   36,  234 

LICENSE, 

must  be  shown  by  the  party  claiming  its  protection  ....       79 

LIS  MOT  A, 

Avhat,  and  its  effect 131-134 

LLOYD'S  LIST, 

how  far  admissible  against  underwriters 198 

LOG-BOOK, 

how  far  admissible 49o 

LOSS, 

of  private  writings,  proof  of 558 

of  records 84,  «.,  508 

{See  Evidence.     Private  Writings.     Records  and  Judicial 

Writings.) 

LUNACY, 

when  presumed  to  continue 42 

inquisition  of,  its  admissibility  and  effect 556 

M. 

MAGISTRATE, 

confessions  made  to 216,  222,  224,  227 

{See  Confession  of  Guilt.) 
MALICE, 

when  presumed 18>  34 

MALICIOUS  PROSECUTION, 

testimony  of  defendant  given  before  grand  jury,  admissi- 
ble in    352 


G02  INDEX. 

Section 

3LVLlClurS    riiOSECUTION—  Continued. 

judgment  of  acquittal,  when  admissible  in 538 

co|)y  of  judLrmcnt  of  acquittal,  whether  plaintiff  entitled  to    .     471 

.AIALICIOUS  SHOOTING, 

wife  competeut  to  prove 343 

IMArS, 

wlicn  evidence 139 

MARRIAGE, 

whether  provable  by  reputation 107 

forcible,  wife  admissible  lo  prove    .     .     .     .     » 343 

second,  in  case  of  polygamy,  by  whom  proved 339 

and  time  of,  included  in  pedigree 104 

when  presumed,  from  cohabitation 27,  207 

foreign  sentences  as  to,  effect  of 544,  545 

proof  of 342,  343,  484,  493 

{See  Husband  and  Wife.    Public  Records  and  Documents. 
Recouds  and  Judicial  Writings.) 

MASTER, 

when  servant  witness  for 41 6 

when  not 396 

MEDICAL  WITNESS, 

not  privileged 248 

may  testify  to  opinions,  when 440 

when  not 441 

MEMORANDUM, 

to  refresh  memory  of  witness 436-439 

{See  Witnesses.) 

MISTAKE, 

admissions  by,  effect  of  ..... 206 

of  law  apparent  in  a  foreign  judgment,  effect  of  ...     .    547,  n. 

^riXED  QUESTIONS, 49 

{See  Judge.    Jurors.) 

]\IONUMENTS,     {See  Boundary.    Inscriptions.) 

MURDER, 

when  malice  presumed 18 

N. 

NAVY  OFFICE, 

books  of 493 

{See  Public  Records  and  Documents.) 


INDEX.  .  653 

Section 
NEGATIVE, 

when  and  by  whom  to  be  proved 78-81 

(See  Onus  Probandi.) 
NOLLE  BR  OSEQ  UI, 

effect  of,  to  restore  competency 356,  363 

{See  Witnesses.) 
NON-ACCESS, 

husband  and  wife,  when  incompetent  to  prove      .     .     .     .    28,  253 
NOTICE, 

to  produce  writings 560-563 

{See  Private  Writings.) 
NOTORIETY, 

general,  when  evidence  of  notice 138 

whether  noticeable  by  a  judge 364 

NULLUM  TEMPUS  OCGURRIT  REGI, 

when  overthrown  by  presumption 45 

0. 

OATH, 

its  nature 328 

in  litem,  when  admissible 348-350,  352,  558 

how  administered 371 

OBLIGEE, 

release  by  one  of  several,  binds  all 427 

{See  Witnesses.) 
OBLIGOR, 

release  to  one  of  several,  discharges  all 427 

{See  Witnesses.) 
OFFICE, 

appointment  to,  when  presumed 83,  92 

OFFICE  BOOKS,     {See  Public  Records  and  Documents.) 
OFFICER, 

rfeyacto,^nma  yoCTe  proof  of  appointment 83,92 

OFFICIAL  COMMUNICATIONS, 

when  privileged 249-252 

{See  Privileged  Communications.) 
ONUS  PROBANDI, 

devolves  on  the  affirmant 74 

on  party  producing  a  witness  deaf  and  dumb  .     .     .     366 
on  party  alleging  defect  of  religious  belief  ....     370 

in  probate  of  wills 77 

55* 


654  INDEX. 

Section 
ONUS  PR  OBAN DI—  Continued. 

in  actions  on  promissory  notes,  «&;c.,  fraudulently  put  in 

circulation 81  a 

in  actions  by  the  holder  of  a  bank-bill,  shown  to  have 

been  stolen 81  a 

in  criminal  cases 81  o 

exceptions  to  the  rule  — 

1.  when  action  founded  on  negative  allegation     .     .       78 

2.  matters  best  known  to  the  other  party    ....       79 

3.  allegations  of  criminal  neglect  of  duty  ....       80 

4.  other  allegations  of  a  negative  character     ...       81 
( )PINION, 

when  evidence  of  it  is  admissible 440,  57G,  580,  n. 

(See  Experts.) 

(jvi:kt  act, 

proof  of,  in  treason 235 

OWNER, 

of  property  stolen,  a  competent  witness 412 

OWNEKSIIIP, 

proved  by  possession 34 

P. 

PAPERS, 

private,  when  a  stranger  may  call  for  their  production  .     .     .     246 
(See  Private  Writings.) 

PARDON, 

its  effect  to  restore  competency 377,  378 

(See  Witnesses.) 

PARISH, 

boundaries,  proof  of 145 

judgment  against,  when  evidence  for  another  parish  ....     534 

books 493 

(See  Pun  Lie  Records  and  Documents.    Boundaries.) 

PARISHIONER, 

rated,  admissions  by 179 

PARLIAMKNT, 

proceedings  in,  how  far  privileged  from  disclosure     .     .     .    251,  n. 

PAROL  EVIDENCE* 

its  admissibility  to  explain  writings 275-305 

principle  of  exclusion 276 

the  rule  excludes  only  evidence  of  language    ....      277,  282 


INDEX.  655 

Section 
PAROL   EVIDENCE  —  Contimied. 

in  what  sense  the  words  are  to  be  understood 278 

the  rule  of  exclusion  is  applied  only  in  suits  between  the 

pax-ties 279 

does  not  exclude  testimony  of  experts      .     .     280 
illustrated  by  examples  of  exclusion    .     .     .     281 

does  not  exclude  other  writings 282 

excludes  evidence  of  intention    ....       282  a 

is  admissible  to  show  the  written  confract  originally  void   .     .     284 

want  of  consideration     ....       284,  304 

fraud 284 

illegality 284,304 

incapacity  or  disability  of  party  .     .     .     284 

want  of  delivery 284 

admissible  to  explain  and  contradict  recitals,  when    ....     285 
to  ascertain  the  subject  and  its  qualities, 

&c 286-288,301 

these  rules  apply  equally  to  wills 287,  289-291 

Mr.  Wigram's  rules  of  interpretation  of  wills 287,  n. 

of  any  intrinsic  circumstances  admissible 288,  288  a 

who  must  determine  correct  reading  of  a  paper    ....       288  b 

of  usage,  when  and  how  far  admissible 292,  293,  294 

to  annex  incidents,  admissible 294 

whether  admissible  to  show  a  particular  sense  given  to 

common  words 29o 

admissible  to  rebut  an  equity 296 

to  reform  a  writing 296  a 

to  explain  latent  ambiguities 297-300 

to  apply  an  instrument  to  its  subject 301 

to  correct  a  false  demonstration 301 

to  show  the  contract  discharged 302,  304 

to  prove  the  substitution  of  another  contract  by 

parol 303,  304 

to  show  time  of  performance  enlarged  or  dama- 
ges waived 304 

to  contradict  a  receipt,  when 305 

to  explain  a  bill  of  parcels    . 305,  w. 

PARSON, 

entries  by  deceased  rector,  &c.,  when  admissible 155 

(See  Hearsay.) 
PARTICEPS  CRIMINIS, 

admissible  as  a  witness 379 


65(3  INDEX. 

Section 

PARTIES, 

generally  incompetent  as  witnesses 329,  330 

competent,  when 348,  363 

{See  Witnesses.    Admissions.) 

PARTNERS, 

mutually  affected  by  each  other's  acts 112 

when  bound  by  new  promise  by  one  to  pay  a  debt  barred 

by  statute 112,  «. 

admissions  by 177,189,207,527  a 

{See  Witnesses.) 
PARTNERSHIP,  {See  Partners.) 

PAYEE, 

admissibility  of,  to  impeach  the  security 383-385 

{See  Witnesses.) 
PAYMENT, 

provable  by  parol 302-305 

of  money,  effect  of,  to  restore  competency  .....       408-430 
{See  Witnesses.) 
PAYIilENT  INTO  COURT, 

when  and  how  far  conclusive 205 

PEDIGREE, 

what  is  included  in  this  term 104 

proof  of 103-105 

{See  Hearsay.) 
PERAMBULATIONS, 

when  admissible  in  evidence 146 

PERJURY, 

what  amount  of  evidence  necessary  to  establish    .     .     .       257-260 
PERSONALTY, 

wliat  is,  though  annexed  to  land 271 

PHYSICIANS, 

generally  bound  to  disclose,  confidential  communications  .     248 

{See  Privileged  Communications.) 
PLACE, 

when  material  or  not 61,  62,  63,  65 

PLAINTIFF, 

when  admissible  as  a  witness 348,  349,  361,  558 

{See  Witnesses.) 
PLEAS  AND  PLEADINGS,     {See  Allegations.) 
POSSESSION, 

character  of,  when  provable  by  declarations  of  possessor    .     .     106 
{See  Hearsay.) 


INDEX.  657 

•  Sectiok 

POSSESSION—  Continued. 

when  evidence  of  property 34 

of  guilt .       34 

{See  Presumptions.) 
whether  necessary  to  be   proved,   under   an    ancient 

deed 21,  144 

POSTMAEKS, 40 

POST-OFFICE, 

books 484 

{See  Public  Records  and  Documents.) 
PRESCRIPTION, 

what 17 

variance  in  the  proof  of 71,  72 

mnst  be  precisely  proved 56,  58 

PRESIDENT  OF  THE  UNITED  STATES, 

(See  Executive.     Privileged  Communications.    Witnesses.) 
PRESUIMPTIONS, 

of  law,  conclusive,  on  what  founded 14,  15 

conclusive,  how  declared 16,  17 

from  prescription 17 

from  adverse  enjoyment 16 

from  use  of  deadly  weapon 18 

in  favor  of  judicial  proceedings 19,227 

consideration  of  bond 19 

formality  of  sales,  by  executors,  &c.    .       20 
but  not  of  matters  of 

record 20 

ancient  documents    .     .      21,  143,  144,  570 
genuineness  and  integrity  of  deeds    144,564 

authority  of  agent 21 

as  to  estoppels  by  deed 22-24 

by  admissions 27 

by  conduct 27 

omnia  rite  acta 20  « 

as  to  capacity  and  discretion 28,  367 

legitimacy 28 

coercion  of  wife  by  husband  ......       28 

survivorship 29,  30 

neutrality  of  ship 31 

performance  of  duty 227 

from  spoliation  of  papei's 31 

principle  and  extent  of  conclusive  presumptions  of  law      .      31,  32 


Co8  INDEX. 

Section 
PRESUMPTIONS— Co«<Mmc(?. 

disputable,  nature  and  principles  of 33 

of  innocence 34,  35 

except  in  case  of  libel,  and  when  .     .       36 

of  malice 34 

of  lawfulness  of  acts 34 

from  possession 34 

guilty  possession 34 

destruction  of  evidence 37 

fabrication  of  evidence 37 

f  usual  course  of  business 38,  40 

non-payment  twenty  years 39 

of  continuance 41 

of  life,  not  after  seven  years'  absence,  &c.    ...       41 

of  continuance  of  partnership,  once  proved  ...       42 

of  opinions  and  state  of  mind       42,  370 

^     of  capacity  and  discretion  in  children       .     .     .     .     3G7 

in  persons  deaf  and 

dumb 366 

of  religious  belief  in  witnesses 370 

of  international  comity 43 

of  fact,  nature  of 44 

belong  to  the  province  of  the  jury 44 

when  juries  advised  as  to,  by  the  court   .     .     .      45-48 
PRINCIPAL   DEBTOR, 

when  his  admissions  bind  the  surety 187 

PRINCIPAL  FELON, 

accessory,  not  a  competent  witness  for 407 

PRISON   BOOKS, 

when  and  for  what  purposes  admissible 493 

{See  Public  Records  and  Documents.) 
PRISONER   OF   WAR, 

mode  of  procuring  attendance  of,  as  a  witness 312 

PiilVATE  WRITINGS, 

contemporaneous,  admissible  to  explain  each  other    ....     283 

proof  of,  when  lost 557,  558 

diligent  search  required 558 

production  and  inspection  of,  how  obtained 559 

notice  to  produce 560 

when  not  necessary 561 

how  directed  and  served     .    .     .    .      561,  562 
when  to  be  called  for 563 


INDEX.  659 

Section 
PRIVATE  ^YmTI^ GS—  Contmued. 

alteration  in,  when  to  be  explained 564 

when  presumed  innocent 564 

to  be  tried  ultimately  by  the  jury 564 

a  deed  renders  it  void 5  Go 

reasons  of  this  rule 565 

alteration  and  spoliation,  difference  between 566 

by  inseiliou  of  words  supplied  by  law 567 

made  by  the  party,  immaterial  and  without  fraud, 

does  not  avoid 568 

made  by  party  with  fraud,  avoids 568 

but  does  not  devest  estate     .     .     .     568 
alterations  made  by  party  defeats  estate  lying  in  grant  .     .     .     568 
destroys  future  remedies    .     .     .     .     568 
made  between  two  parties  to  an  indenture,  but 

not  affecting  the  others 568 

pi'oof  of,  must  be  by  subscribing  witnesses,  if  any     .     .       272,  569 
exceptions  to  this  rule  :  — 

1.  deeds  over  thirty  years  old 570 

2.  deed  produced  by  adverse  party  claiming  under  it      .571 

3.  witnesses  not  to  be  had 572 

4.  office  bonds 573 

subscribing  witness,  who  is 569 

diligent  search  for  witnesses  required 574 

secondary  proof,  when  witness  not  to  be  had     ....  84,  n.,  575 
handwriting,  how  proved 272,  576 

pei'sonal  knowledge  of,  required 577 

exceptions  to  this  rule 272,  578 

comparison  of  handwriting,  by  what  other  papers      .     .       579-582 
PRIVIES, 

who  are  privies 23,189,190,211 

PRIVILEGE   OF  WITNESS, 

from  arrest 316 

from  answering 451-460 

PRIVILEGED   COMMUNICATIONS, 

1.  made  to  legal  counsel  —  principle  of  exclusion     ....     237 

who  are  included  in  the  rule,  as  counsel 239,  241 

nature  of  the  communication 240 

extends  to  papers  intrusted  with  counsel 240 

not  to  transactions  in  which  the  counsel  was  also  party  .  .  242 
protection  remains  for  ever,  unless  waived  by  the  party  .  243 
limitations  of  the  rule 244,  245 


G60  INDEX. 

Sectiok 
PRIVILEGED    COMMUNICATIONS  —  Continued. 

when  title-deeds  and  papers  of  one,  not  a  party  may  be 

called  out  of  the  hands  of  his  agent 246 

2.  made  to  clei'gymen,  how  far  privileged 229,  247 

3.  made  to  medical  persons,  and  other  confidential  friends 

and  agents,  not  privileged 248 

4.  arbitrators  not  bound  to  disclose  grounds  of  award    .     .     .     249 

5.  secrets  of  State 250,  251 

6.  proceedings  of  grand-jurors 252 

7.  between  husband  and  wife 254,  334 

PRIZE, 

foreign  sentence  of  condemnation  as 541 

PROBATE  COURTS, 

decrees  of,  when  conclusive 518,  550 

PRO  CHE  IN  A3IT, 

admissions  by 179 

inadmissible  as  a  witness      .     .     .   • 347,391 

PROCLAMATIONS, 

proof  of 479 

evidence  of,  what 491 

PRODUCTION  OF  WRITINGS, 

private,  how  obtained 559-563 

(See  Private  Writings.) 
PROI\IISSORY  NOTE, 

parties  to,  when  competent  to  impeach  it 383-385 

(See  Witnesses.) 
PROOF, 

defined 1 

PROPERTY, 

when  presumed  from  possession 34 

PROSECUTOR, 

when  competent  as  a  witness 362 

PUBLICATION, 

of  libel  by  agent,  when  principal  liable  for 36,  234 

PUBLIC  BOOKS, 

contents  provable  by  copy 91 

(See  PuuLic  Records  and  Documents.) 
PUBLIC  AND  GENERAL  INTEREST,  (See  Hearsay.) 

PUBLIC   RECORDS  AND   DOCUMENTS, 

inspection  of  records  of  superior  courts 471,  472 

of  mferior  courts 473 

of  corporation  books 474 


INDEX.  6G1 

Section 
PUBLIC   RECORDS   AND   DOCUMENTS  —  CowfmMec?. 

inspection  of  records  of  books  of  public  offices     .     .     .       475,  476 

when  an  action  is  pending 477 

■when  not 478 

proof  of  public  documents  not  judicial 479-491 

by  copy 91,  479-484 

acts  of  State 479 

statutes '. 480, 481 

legislative  journals 482 

official  registers,  «&;c .      483,  484 

official  registers,  &c.,  character  of  these  books  .     .       485,  496 

proper  repository 142,  485 

who  may  give  copies 485 

foreign  laws 486,  487,  488,  488  a 

laws  of  sister  States 489,  490 

judicially    noticed    by    Federal 

Courts 490 

admissibility  and  effect  of  these  documents      ....       491-498 

proclamations 491 

recitals  in  public  statutes 491 

legislative  resolutions 491 

journals 491 

diplomatic  correspondence 491 

foreign  declarations  of  war 491 

letters  of  public  agent  abroad 491 

colonial  governor 491 

government  gazette 492 

official  registers 493 

parish  registers 493 

navy  office  registers 493 

prison  calendars 493 

assessment  books 493 

municipal  corporation  books       .     .     493 
private  corporation  books      .     .     .     493 

registry  of  vessels 494 

log-book 495 

what  is  an  official  register  484,  495,  496 
public  histories,  how   far    ad- 
mitted   497 

official  certificates 498 

PUNISHMENT, 

endurance  of,  whether  it  restores  competency 378,  n. 

VOL.  I.  56 


6G2  INDEX. 

Q. 

Section 
QUAKERS, 

jiitlicial  aflirmation  by 371 

QUALIFICATION, 

by  degi-ee,  when  proof  of  dispensed  with 195, «. 

by  license,  must  be  shown  by  party  licensed 78,  79 

QUANTITY  AND   QUALITY, 

whether  material 61 

QUO   WARRANTO, 

judgment  of  ouster  in,  conclusive  against  sub-officers  un- 
der the  ousted  incumbent 536 

R. 

RAPE, 

wife  competent  to  prove     ....         343 

RATED   INHABITANTS,     {See  Lxhabitants.) 

admissions  by 175,  331 

REALTY, 

what  is 271 

RECEIPT, 

effect  of,  as  an  admission 212 

when  it  may  be  contradicted  by  parol 305 

of  part  payment,  by  indorsement  on  the  security      .     .      121,  122 

when  admissible  as  evidence  of  payment 147,  n. 

RECITALS, 

in  deeds,  when  conclusive >.      24,  25,  26,  211 

when  evidence  of  pedigree 104 

RECOGNIZANCE.  {See  Witnesses.) 

RECORDS, 

variance  m  the  proof  of,  when  jileaded 70 

public,  provable  by  copy 91 

inspection  of 471-478 

{See  Records  and  Judicial  Writings.) 
RECORDS  AND  JUDICIAL  WRITINGS, 

proof  of 501-521 

by  copies,  three  kinds  of 501 

by  exemijlification,  and  what 501 

by  production  of  the  record        502 

when  obtained  by  certiorari        502 
by  coi^y  under  seal       503 


INDEX.  663 

Section 
RECORDS   AND  JUDICIAL  WRlTmGS—  Continued. 

proof  of  records  of  sister  States  of  the  United  States  .       50-4-506 

by  office  copy 507 

by  examined  copy 508 

wlien  lost 509 

proof  of  verdicts [,\o 

decrees  in  chancery 510  511 

answers  in  chancery 512 

judgments  of  inferior  courts 513 

foreign  judgments 514 

foreign  documents 514a 

inquisitions  post  mortem,  and  other  private  offices  .  ■  .     515 

depositions  in  chancery 516 

depositions  taken  under  commission 517 

wills  and  testaments 518 

letters  of  administration 519 

examination  of  prisoners 520 

writs 521 

admissibility  and  effect  of  these  records 522-556 

general  principles 522 

who  are  parties,  i^rivies,  and  strangers      .     .     .      523,536 

mutuality  required,  in  order  to  bind 524 

except  cases  in  rem 525 

cases  of  custom,  &c 526 

when  offered  for  collateral 

purposes 527,  527  a 

or  as  solemn  admissions  .  .  •  527  a 
conclusive  only  as  to  matters  directly  in  issue  .  528,  534 
general  rule  as  stated  by  Lord  C-  J.  De  Grey  .  .  .  528 
applies  only  where  the  point  was  determined  .  .  .  529* 
to  decisions  upon  the  merits  ....  530 
whether  conclusive  when  given  m  evidence  .  531,  531  a 
to  be  conclusive,  must  relate  to  the  same  property 

or  transaction       532 

effect  of  former  recovery  in  tort,  without  satis- 

foction 533 

sufficient,  if  the  point  was  essential  to  the  former 

fiiitliug  • 534 

judgment  in  criminal  case,  why  not  admissible  in 

a  civil  action 537 

judgment,  for  what  purposes  always  admissible        538,  539 
foreign  judgments,  jurisdictiouof  court  to  be  shown         540 


604  INDEX. 

Section 
RECORDS   AND   JUDICIAL  WRITINGS  —  Continued. 

in  rem,  conclusive      .     .     .      540,  542 
how  far  conclusive  as  to  inci- 
dental matters 543 

as  to  personal  status,  marriage, 

and  divorce 544,  545 

executors  and  administrators    .     .     544 
decisions  of  highest  judicial  tribunal  of  foreign 

country  conclusive 546  h 

judgment  of  foreign  court  conclusive  inter  partes, 

when 546  d 

fbreign  decrees  operating  in  rem 546  e 

effect  of  defendant  becoming  party  to  proceedings  546/ 
requisites  to  a  jDlea  of  foreign  judgment  in  bar  .  546  ^ 
foreign  judgments  in  personam,  their  effect  .  .  546-549 
judgments  of  sister  States  of  the  United  States  .  .  548 
citizenship  not  material,  as  to  the  effect  of  foreign 

judgments 549 

admissibility  and  effect  — 

of  decrees  of  courts  of  probate 

or  ecclesiastical  courts      ....     550 

of  chancery  decrees 551 

answers 551 

demurrers 551 

pleas 551 

of  depositions 552 

of  foreign  depositions 552 

of   verdicts   and   depositions   to   prove 

matters  of  reputation 555 

of  inquisitions 556 

of  mutuality,  as  to  depositions 553 

whether  cross-examination  is  essential  to  their  admissi- 
bility   553,  554 

RE-EXAMINATION, 

of  witnesses 467,  463 

{See  Witnesses.) 
REGISTER, 

official,  nature  and  proof  of ...    .  483,  484,  485,  493,  496,  497 

parish 493 

bishop's 474,  484 

ship's 494 

foreign  chapel 493,  n. 


INDEX.  605 

Section 
'REGISTF.U—Contimced. 

fleet 493,  n. 

(See  Public  Records  and  Documents.) 
REGISTRY, 

proper  custody,  when 142,  485 

RELATIONSHIP, 

of  declarant,  necessary  in  proof  of  pedigree,  when       103,  104,  134 
RELEASE, 

competency  of  witness  restored  by,  when 426,  430 

(See  Witnesses.) 
RELIGIOUS   PRINCIPLE   AND   BELIEF, 

what  necessary  to  competency  of  witness 368-372 

(See  Witnesses.) 
RENT, 

presumption  fi-om  payment  of 38 

REPLEVIN, 

surety  in,  how  rendered  competent 392,  w. 

REPUTATION, 

of  witnesses 101,  461 

(See  Hearsay.    Witnesses.) 

evidence  of,  when  proved  by  verdict 139 

imS  GEST^, 

what 108,  109,  111,  114 

(See  Hearsay.) 
RESIGNATION, 

of  corporator  restores  competency 430 

RESOLUTIONS, 

legislative 479 

at  public  meetings  may  be  proved  by  parol 90 

REWARD, 

title  to,  does  not  render  incompetent 412,  414 


S. 
SALE, 

when  to  be  proved  only  by  writing 261,  267 

(See  Writing.) 
SANITY, 

whether  letters  to  the  party  admissible  to  prove  ....     101,  n. 

opinions  of  physicians  admissible  as  to 440 

SCRIVENER, 

communications  to,  whether  privileged 244 

56* 


G6G  INDEX. 

Section 

SEALS, 

of  foreign  nations,  judicially  noticed       4 

of  admiralty  courts 5 

of  courts,  when  judicially  noticed 4,  5,  6,  503 

of  corporations,  whether  to  be  proved,  after  thirty  years    .     .570 
(See  PuDHC  Records  and  Documents.     Records  and 
Judicial  Writings.) 

SEARCH, 

for  private  writings  lost 558 

for  subscribing  witnesses 574 

(See  Private  Writings.) 
SECONDARY  EVIDENCE, 

whether  degrees  in       84,  n. 

when  admissible        84,509,500,575 

SECRETARY  OF    STATE, 

when  his  certificate  admissible 479 

SECRETS   OF    STATE, 

privileged 250— 2o2 

SENTENCE, 

of  foreign  courts,  when  conclusive 543-547 

(See  Records  and  Judicial  Writings.) 
SERVANT, 

when  competent  as  a  witness  for  master 416 

(See  Witness.) 
SERVICE, 

of  notice  to  quit,  proved  by  entry  by  deceased  attorney     .     .     116 

to  produce  papers 5G1 

SHERIFF, 

admissions  of  deputy,  evidence  against 180 

of  indemnifying  creditor  admissible 180 

SHIPS, 

grand  bill  of  sale  requisite,  on  sale  of 261 

SHOP   BOOKS, 

when  and  how  far  admissible  in  evidence 117-119 

SLANDER, 

who  is  to  begin,  in  action  of '6 

SOLICITOR,       (See  Attorney.     Privileged  Communications.) 

SPIES,  (See  AccOMrLiCES.) 

SPOLIATION, 

of  paper.'^,  fraudulent,  effect  of 31 

difference  between,  and  alteration 566,  568 

STAMP,  (,See  Memorandum.) 436 


INDEX.  6G7 

Section 

STATUTE   OF   FRAUDS, 262-274 

(See  Writings.) 
STATUTES, 

public,  proof  of 480 

of  sister  States 489-491 

pi'ivate 480 

(See  Public  Records  and  Documents.) 
STEWARD, 

entries  by 147,  155 

(See  Hearsay.) 
STOCK, 

transfer  of,  proved  by  bank-books 484 

(See  Public  Records  and  Documents.     Corporations.) 
SUBP(EAfA, 

to  procure  attendance  of  witnesses 309 

(See  Witnesses.) 
SUBSCRIBING  WITNESS, 

(See  Attesting  Witness.     Private  Writings.) 
SUBSTANCE   OF   ISSUE, 

proof  of,  sufficient 56-73 

■what  in  libels  and  written  instruments 58 

in  prescriptions 58,  71 

in  allegations  modo  et  forma 59 

in  allegations  under  a  videlicet CO 

of  time,  place,  «S:c 61,  G2 

variance  in  proof  of        63,  64 

what,  in  criminal  prosecutions 65 

in  actions  on  contract 66 

in  case  of  deeds ' 69 

records 70 

(See  Description.) 
SURETY, 

how  rendered  a  competent  witness  for  principal         ....     430 
(See  Witnesses.) 
SURGEON, 

confidential  communications  to,  not  privileged ....       247,  248 
SURPLUSAGE, 

what 51 

SURRENDER, 

when  writing  necessary 265 

SURVIVORSHIP, 

not  presumed,  when  both  perish  in  the  same  calamity    .     .      29,  30 


668  INDEX. 


T. 

Section 

TENANT, 

estopped  to  deny  title  of  landlord,  when 25 

TERRIEK, 

■what,  and  when  admissible 484,  496 

TIME, 

when  not  material 56,  61,  62 

TOMBSTONE, 

inscription  on,  provable  by  parol 94,  105 

TREASON, 

what  amount  of  evidence  necessary  to  prove   ....      255,  256 

wife  incompetent  to  prove,  against  husband 345 

confession  of  guilt  in,  its  effect 234,  235 

TRESPASS, 

defendant  in,  when  admissible  for  co-defendant     .     .     .       357,  359 
TRIAL, 

when  jDut  off,  on  account  of  absent  witnesses 320 

for  religious  instruction  of  witness 367 

(*S'ee  Witnesses.) 
TROVER, 

whether  barred  by  prior  judgment  in  trespass 533 

(See  Records  and  Judicial  Writings.) 
TRUSTS, 

to  be  proved  by  writing 266 

except  resulting  trusts 266 

resulting,  when  they  arise ' 266 

TRUSTEE, 

when  competent  as  a  witness 333,  409 

U. 

UNCERTAINTY, 

what 298, 300 

UNDERSTANDING, 

not  presumed  in  persons  deaf  and  dumb 366 

UNDERTAKING, 

to  release,  its  effect  on  competency 420 

UNDERWRITER, 

party  to  a  consolidation  rule,  incompetent 395 

who  has  paid  loss,  to  be  repaid  on  plaintiff's  success,  incom- 
petent    392 


INDEX.  669 

Section 
UNDERWRITER— CbH^m«e(/. 

opinions  of,  when  not  admissible     ....  441 

UNITED   STATES, 

laws  of,  how  proved,  inter  sese 489,  490 

judgments  of  courts  of    .     .  * 548 

(See  Public   Records   and  Documents.    Records   and   Judicial 

Pkoceedings.) 
USAGE, 

admissibility  and  effect  of,  to  effect  written  contracts      .       292-294 
(See  Parol  Evidence.) 

V. 

VARIANCE, 

nature  of 63,  64-73 

in  criminal  prosecutions   .    x 65 

in  the  proof  of  a  contract 66 

consideration 68 

deeds 69 

when  literal  agx-eement  in  proof  not  necessary 69 

in  the  name  of  obligor 69,  ?i. 

in  the  proof  of  records 70 

prescriptions 71, 72 

fatal  consequences  of,  how  avoided 73 

(See  Description.     Substance  op  the  Issue.) 
VERDICT, 

inter  alios,  evidence  of  what 139,  538,  555 

separate,  when  allowed 358,  363 

VIDELICET, 

its  nature  and  office 60 

when  it  will  avoid  a  variance 60 

VOIR  DIRE, 

what 424 

(See  Witnesses.) 

W. 

WAY,  (See  Highway.) 

WIDOW, 

incompetent  to  testify  to  admissions  by  deceased  husband  .     .     337 
(See  Husband  and  Wife.     Privileged  Communications.) 
WILL, 

how  to  be  executed 272 


670  INDEX. 

Section 
"WILL  — ■  Continued. 

how  to  be  revoked 272 

cancellation  of,  what 273 

admissibility  of  parol  evidence  to  explain,  &c.      .     .     .       287-291 

{See  Parol  Evidence.) 
Mr.  Wigram's  rules  of  interpretation      ....  .  287,  n. 

general  conclusions 291,  w. 

proof  of 440,  518 

effect  of  the  probate  of 550 

WITNESSES, 

how  many  necessary  to  establish  treason      .  ...       255,  256 

perjury 257-260 

to  overthrow  an  answer  in  chancery       .     260 

how  to  procure  attendance  of 309-324 

by  subpoena 309 

subpoena  diices  tecum 309 

tender  of  fees 310,  311 

not  in  criminal  cases       .     .     311 

habeas  corpus  ad  testificandum 312 

recognizance 313 

subpcena,  when  served 314 

how  served 315 

how  and  when  protected  from  arrest 316 

discharged  from  unlawful  arrest 318 

neglecting  or  refusing  to  appear,  how  compelled 319 

residing  abroad,  depositions  taken  under  letters  rogatory    .     .     320 

sick,  depositions  taken  by  commission,  when 320 

de2)ositions  of,  when  and  how  taken 321-324 

in  perpetuam  rei  memoriam 324,  325 

competency  of 327-430 

to  be  sworn.     Oath,  its  nature 328 

competency  of  parties 327,  330 

attorneys 364,  386 

quasi  corporators 331 

private  corporators 332,  333 

members  of  charitable  corporations    ....     333 

husband  and  wife 334-336 

time  of  marriage  not  material  .     .     .     336 
rule    operates    after    divorce    or 

death  of  one 337 

exception 338 

rule  applies  only  to  legal  marriages    .     339 


INDEX.  671 

Section 
WITNESSES  —  Continued. 

how  affected  hy  husband's  consent  340 

applies,  wherever  he  is  interested    341 

competent  in  collateral  proceedings    .     342 

exceptions  in  favor  of  wife  .     .       342-345 

competency  of 

husband  and  wife 

rule  extends  to  cases  of  treason,  semh.      .     .     345 

dying  declarations 346 

parties  nominal,  when  incompetent 347 

parties,  when  competent 348,  353,  558 

from  necessity 348-350 

from  public  policy 350 

answer  in  chancery  admissible 351 

oath  given  diverso  intuitu,  admissible  .     .     -     352 

never  compellable  to  testify 353 

one  of  several  not  admissible  for  the  ad- 
verse party,  without  consent  of  all  .     .     .     354 
when  admissible  for  the  others  in 

general oOD 

in  actions  ex  contractu 35  G 

in  actions  ex  delicto  ....  357-359 
made  party  by  mistake,  when  admissible  .  359 
defendant  in  ejectment,  when  admissible  .  360 
in  chancery,  when  examinable  .  .  .  .  361 
in  criminal  cases,  as  to  prosecutor  .  .  .  362 
as    to  defendants  .     .  •  .     363 

judge,  when  incompetent 364 

juror  competent 364,  «. 

as  to  competency  of  persons  deficient  in  understanding .       365-367 

persons  insane 365 

caxise  and  permanency  immaterial    .     .     .     365 

persons  deaf  and  dumb 366 

as  to  competency  of  children 367 

persons  deficient  in  religious  principle    368-371 

general  doctrine 368 

degree  of  faith  required 369 

defect  of  fiiith  never  presumed    ....     370 

how  ascertained  and  proved 370,  n. 

how  sworn ^  ^  1 

infamy  of,  renders  incompetent 372 

reason  of  the  rule     .     .     .     .     372 


\ 


672  INDEX. 

Section 
WITNESSES  —  Continued. 

what  crimes  render  infamous 373 

extent  of  the  disability 374 

must  be  proved  by  record  of  the  judgment    ....     375 

exceptions  to  this  rule  of  incompetency 374 

foreign  judgment  of  infamy  goes  only  to  the  credit      .     376 
disability  fi'om  infamy,  removed  by  reversal  of  judgment  .     .     377 

by  pardon       ....      377,  378 

accomplices,  when  admissible 379 

their  testimony  needs  corroboration      ....      380,  381 
unless  they  were  only  feigned  accomplices     ....     382 
party  to  negotiable  instrument,  when  incompetent  to  im- 
peach it ■ 383-385 

interested  in  the  result,  generally  incompetent     .     .     .       386-430 
nature  of  the  interest,  direct  and  legal,  «&c.     .     .     386 

real 387 

not  honorary  obligation 388 

not  in  the  question  alone 389 

test  of  the  interest 390 

mode  of  proof 423 

magnitude  and  degree  of  interest 391 

nature  of  interest  illustrated 392 

interest  arising  from  liability  over 393 

in  what  cases 394-397 

agent  or  servant 394,  396 

co-contractor 395 

what  extent  of  liability  sufficient ....      396,  397 

implied  warranty  sufficient        398 

balanced  interest  does  not  disqualify      .  391,  399,  420 

parties  to  bills  and  notes 399 

probable  effect  of  testimony  does  not  disqualify  .     400 

liability  to  costs  disqualifies 401,  402 

title  to  restitution,  when  it  disqualifies    ....     403 
interested  in  the  record,  what,  and  when  it  disqualifies        404,  405 

in  criminal  cases,  as  accessory 407 

conspirator,  &c 407 

nature  of  disqualifying  interest  further  explained  by  cases 

to  which  the  rule  does  not  apply 408-410 

exceptions  to  the  rule  that  interest  disqualifies     .     .     .       411-420 

1.  witness  entitled  to  reward,  or  rather  benefit  on 

conviction 412-414 

2.  party  whose  name  is  forged 414 


INDEX.  G73 

Section 
WITNESSES—  Continued. 

3.  rendered  competent  by  statute 415 

4.  admitted  from  j)ublic  convenience  and  necessity  in 

case  of  middle-men,  agents,  &c 41  (> 

confined  to  ordinary  business  transactions      .     .     .     .     417 

5.  interest  subsequently  acquired 418 

6.  oflTering  to  release  his  interest 419 

7.  amply  secured  against  liability  over 420 

objection  of  incompetency,  when  to  be  taken  .     .     .     .      421,  42 2 

how,  if  subsequently  discovered      .     .     .     421 
arising  from  witness's  own  examina- 
tion may  be  removed  in  same  manner        422 
from  interest,  how  proved       .     .     .       423,  424 
to  be  determined  by  the  court  alone   ....     425 

examination  of,  on  the  woiV  </iVe,  what -.     424 

competency  of,  when  restored  by  a  release 420 

by  wdiom  given 427 

when  not 428 

delivery  of  release  to  the  witness  not  necessary     429 
when  restored  by  payment  of  money  .     .      4U8,  430 

by  striking  off  name 430 

by  substitution  of  another  surety  .     .     .     430 
by  operation  of  bankrupt  laws,  &c.    .     .     430 

by  transfer  of  stock 430 

by  other  modes 430 

by  assignment  of  interest 408 

examination  of 431-409 

regulated  by  discretion  of  judge 431 

may  be  examined  apart^  when 432 

direct  and  cross-examination,  what      ....     433 

leading  questions,  what 434,  434  a 

when  permitted       ....     435 
when  witness  may  refer  to  writings  to  as- 
sist his  memory 436-437 

when  the  writing  must  have  been  made        .     .     438 
if  witness  is  blind,  it  may  be  read  to  him     .     .     439 
must  in  general  depose  only  to  facts  person- 
ally known 440 

when  opinions  admissible 440,  440  a 

when  not         441 

witness  not  to  be  impeached   by  party 

calling  him 142 

TOL.  I.  57 


674  INDEX. 

Section 
WITNESSES  —  Continued. 

examination  of,  exceptions  to  tliis  rule 443 

may  be  contradicted  as  to  a  particular  fact  .     .     443 
witness  surprising  the  party  calling  him  .     .     .     444 

cross-examination,  when 44o 

value  and  object  of 446 

how  long  the  right  continues 447 

how  far  as  to  collateral  facts  ....  448,  449 
to  collateral  fact,  answer  conclusive      .     .     .     449 

as  to  feelings  of  hostility 450 

as  to  existing  relations  and  intimacy  with 

the  other  party 450 

respecting  writings 463-466 

in  chancery 554 

whether  compellable  to  answer 451-460 

to  expose  him,  — 

1.  to  a  criminal  charge     ....     451 

when  he  testifies  to  part  of 
a  transaction  without  claim- 
ing his  privilege  .     .     .       451  a 

2.  to  pecuniary  loss 452 

3.  to  forfeiture  of  estate  ....     453 

4.  to  disgrace 454,  455 

where  it  only  tends  to  disgrace  him     .     .     .     456 
impertinent  questions  on  cross-examina- 
tion   456  a 

where  it  shows  a  previous  conviction  .  .  .  457 
to  questions   showing  disgrace,   but  not 

affecting  his  credit 458 

to  questions  showing  disgrace,  affecting 

his  credit 459 

when  a  question  may  be  asked  which  the 

witness  is  not  bound  to  answer    ....  460 

modes  of  impeaching  credit  of 461-469 

1.  by  disproving  his  testimony 461 

2.  by  general  evidence  of  reputation  ....  461 
extent  of  this  inquiry 461 

3.  by  proof  of  self-contradiction 462 

how  to  be  supported  in  such  case  ....  469 
how  to  be  cross-examined  as  to  contents 

of  writings 463-466 

re-examination  of 467,  468 


INDEX.  675 

Sectiok 
WITNESSES—  Continued. 

when  evidence  of  general   chai'acter  admissible  in  sup- 
port of 469 

order  of  proof  and  course  of  trial 469  a 

deceased,  proof  of  former  testimony 163-167 

WRIT, 

how  proved 521 

WRITING, 

when  requisite  as  evidence  of  title 

on  sale  of  ships     {See  Saips.) 261 

by  the  Statute  of  ^t'rauds 262 

to  convey  an  interest  in  lands  .     .     .     .     263 

to  make  a  surrender 265 

to  prove  a  trust  of  lands 266 

a  collateral  promise   .     .     .     .     267 
certain  sales  of  goods     .     .     .     267 
sufficient,  if  contract  is  made  out  from 

several  writings 268 

agent's  authority  need  not  be  in  writ- 
ing   269 

unless  to  make  a  deed   .     .     .     .     269 
the  term  interest  in  land  expounded    270,  271 

devise  must  be  in  writing 272 

how  to  be  executed 272 

revoked 273 

to  bind  an  apprentice 274 

in  what  sense  the  words  of  a  written  contract  are  to  be  taken     274 
when  parol  evidence  is  admissible  to  explain,  &c. 

{See  Parol  I-Cvidknce.) 
public 
{See  Public  Documents.     Records  and  Judicl4l  Writings.) 

written  evidence,  diiferent  kinds  of 470 

private  {See  Private  Writings.) 


Cambridge  :  Press  of  John  Wilson  &  Son. 


LAW  LIBRARY 

XmiVEIlSlTY-  OF  CALIFORNIA! 
LOS  AJVGEr.FS  ■ 


